City of Chester v. Anderson Brief for Appellants and Appendix

    IN  THE

United S ta te s  Court o f Appeals
F o r  t h e  T h i r d  C i r c u i t .

No. 15014.
CITY OF CHESTER

V.

W ILLIA M  ANDERSON, et al.,
Appellants.

No. 15015.
COM M ONW EALTH OF PENNSYLVANIA

v.

W ILLIA M  ANDERSON, et al.,
Appellants.

On Appeal From an Order of the United States District 
Court for the Eastern District of Pennsylvania.

BRIEF FOR APPELLANTS AND APPENDIX.

A n t h o n y  G . A m s t e r d a m ,
C a l e b  F o o t e ,

3400 Chestnut Street,
Philadelphia, Pa. 19104,

Counsel for Appellants.

International, 711 So. 50th St., Phila., Pa. 19143



TABLE OF CONTENTS OF APPELLANTS’ BRIEF.

Page

Q U E ST IO N  IN V O L V E D  ....................................................................................  1

S T A T E M E N T  O F T H E  C A S E ..........................................................................  2

(A )  The Removal Proceedings Generally ................................................  2

(B )  Appeal Nos. 1S014 and 15015 ...............................................................  5

A R G U M E N T  .............................................................................    11

(A )  Introduction ................................................................................................  11

(1 ) Summary ......................................................................................  11

(2 ) The removal statute and its history ..................................... 12

(B ) Defendants’ Removal Petitions Sufficiently State a Removable
Case under 28 U. S. C. § 1443(2) .................................................. 20

(1 ) “ Color of authority”  .................................................................. 22

(2 ) “Law providing for equal rights”  .........................................  29

(3 ) The acts for which defendants are prosecuted ..................  32

(C ) Defendants’ Removal Petitions Also State a Removable Case
under 28 U. S. C. § 1443(1) by Reason of Unconstitutionality 
of the Underlying Criminal Charges ...........................................  33

(D ) Defendants’ Removal Petitions Further State a Removable Case
under 28 U. S. C. § 1443(1) Because the Very Pendency of 
These Prosecutions in the State Courts is Calculated to Sup­
press Their First Amendment Rights .......................................    39

(E )  This Court Has Jurisdiction to Review the Remand Order . . . .  42

CO N CLU SIO N  ........................................................................................................... 46



TABLE OF CITATIONS.

Cases.
Page

Arkansas v. Howard, 218 F. Supp. 626 (E . D. Ark. 1963) ........................... 21
Babbitt v. Clark, 103 U. S. 606 (1880) .............................................................. 45
Baggett v. Bullitt, 377 U. S. 360 (1964) .............................................................. 40
Baines v. Danville, 4th Cir., Nos. 9080-9084, 9149, 9150, 9212 ( 8 /10/64) . . .  39
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .....................................  40
Birmingham v. Croskey, 217 F. Supp. 947 (N . D. Ala. 1963) ....................... 39
Blyew v. United States, 13 Wall. 581 (1871) ...................................................  18
Bowles v. Strickland, 151 F. 2d 419 (5th Cir. 1945) .......................................  43
Braun v. Sauerwein, 10 Wall. 218 (1869) ...........................................................  21
Brown (Addie Sue) v. City of Meridian, 5th Cir., No. 21730 ( 7/23/64) ..38,39
Bruner v. United States, 343 U. S. 112 (1952) .................................................  43
Bush v. Kentucky, 107 U. S. 110 (1882) ............................................................ 34
Commonwealth v. Albert, 169 Pa. Super. 318, 82 A. 2d 695 (1951) ............  3
Commonwealth v. Mack, 111 Pa. Super. 494, 170 Atl. 429 (1934) ............... 3,6
Cramp v. Board of Public Instruction, 368 U. S. 278 (1961) ......................... 40
Douglas v. Jeannette, 319 U. S. 157 (1943) .......................................................  31
Edwards v. South Carolina, 372 U. S. 229 (1963) .........................................  33
Egan v. Aurora, 365 U. S. 514 (1961) .............................................................. 31
Employers Reinsurance Corp. v. Bryant, 299 U. S. 374 (1937) ..................  45
England v. Louisiana State Board of Medical Examiners, 375 U. S. 411

(1964) .................................................................................................... .. 17
E x parte Collett, 337 U. S. 55 (1949) ................................................................. 43
E x parte United States, 287 U. S. 241 (1932) ....................................  45
Fay v. Noia, 372 U. S. 391 (1963) ........................................................................14,17
Feiner v. New York, 340 U. S. 315 (1951) .......................................................  41
Fields v. South Carolina, 375 U. S. 44 (1963) .....................................................  33
Fowler v. Rhode Island, 345 U. S. 67 (1953) .....................................................  30
Gay v. Ruff, 292 U. S. 25 (1934) .......................................................................... 45
Georgia v. Tuttle, 84 S. Ct. 1940 (1964) ..................................................... 39,43,44
Gibson v. Mississippi, 162 U. S. 565 (1896) .......................................... 34,38
Hague v. C. I. O., 307 U. S. 496 (1939) .................................  30,31
Harris v. Gibson, 322 F. 2d 780 ( 5th Cir. 1963) ....................     45
Henry v. Rock Hill, 376 U. S. 776 (1964) ......................................    33
Herndon v. Lowry, 301 U. S. 242 (1937) ...........................................................  36



Cases (Continued).

Page
Hill v. Pennsylvania, 183 F. Supp. 126 (W . D. Pa. 1960) ............................. 30
Hoadley v. San Francisco, 94 U. S. 4 (1876) ...................... ..........................43,45
Hodgson v. Millward, 12 Fed. Cas. 285, No. 6,568 (Grier, C. J., E. D. Pa.

1863) ....................................................................................................................... 21
Hodgson v. Millward, 3 Grant (P a .) 412 (Strong, J., at nisi prius, 1863) 21
In re Pennsylvania Co., 137 U. S. 451 (1890) .................................................  45
Kentucky v. Powers, 201 U. S. 1 (1906) ........ ...................................... 34, 37, 38, 39
La Buy v. Howes Leather Co., 352 U. S. 249 (1957) ....................................... 45
Lanzetta v. New Jersey, 306 U. S. 451 (1939) ..............................................  36
Local No. 438 v. Curry, 371 U. S. 542 (1963) ..............................................  44
Logemann v. Stock, 81 F. Supp. 337 (D . Neb. 1949) .....................................  21
McClellan v. Carland, 217 U. S. 268 (1910) .....................................................  45
McNeese v. Board of Education, 373 U. S. 668 (1963) .................................  17
Marsh v. Alabama, 326 U. S. 501 (1946) .........................................................  39
Missouri Pacific Ry. Co. v. Fitzgerald, 160 U. S. 556 (1896) ......................  45
Mercantile National Bank v. Langdeau, 371 U. S. 555 (1963) ......................... 44
Monroe v. Pape, 365 U. S. 167 (1961) ........................................................ 17,19,30
Murray v. Louisiana, 163 U. S. 101 (1896) ....................................    34
Musser v. Utah, 333 U. S. 95 (1948) .................................................................... 36
N. A. A. C. P. v. Alabama ex rel Flowers, 377 U. S. 288 (1964) ............  30
N. A. A . C. P. v. Button, 371 U. S. 415 (1963) .....................................30, 36,40, 42
Neal v. Delaware, 103 U. S. 370 (1880) .............................................................  38
New York Times Co. v. Sullivan, 376 U. S. 254 (1964) ................................. 39
Niemotko v. Maryland, 340 U. S. 268 (1951) ...................................................  30
North Carolina v. Jackson, 135 F. Supp. 682 (M . D. N. C. 1955) ............  36
Orr v. United States, 174 F. 2d 577 (2d Cir. 1949) ......................................... 43
Platt v. Minnesota Mining & Mfg. Co., 376 U. S. 240 (1964) ...................... 45
Potts v. Elliott, 61 F. Supp. 378 (E . D. Ky. 1945) ..........   21
Prince v. Massachusetts, 321 U.S. 158 (1944) ..............................................  39
Railroad Co. v. Wiswall, 23 Wall. 507 (1874) .............................................. 44,45
Saia v. New York, 334 U. S. 558 (1948) ...........................................................  39
Schoen v. Mountain Producers Corp,, 170 F. 2d 707 (3d Cir. 1948) ..........  43
Smith v. California, 361 U. S. 147 (1959) ............................................... ............ 40
Smith v. Mississippi, 162 U. S. 592 (1896) .....................................................  34
Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934) .....................................................  36
State v. Musser, 118 Ut. 537, 223 P. 2d 193 (1950) ......................................... 36
Steele v. Superior Court, 164 F. 2d 781 (9th Cir. 1948) ............................. 30
Strauder v. W est Virginia, 100 U. S. 303 (1878) ...................................34,36,38

TABLE OF CITATIONS (Continued).



T A B L E  O F C IT A T IO N S  (Continued). 

Cases (Continued).
Page

Tennessee v. Davis, 100 U. S. 257 (1879) .........................................................  33
Terminiello v. Chicago, 337 U. S. 1 (1949) .......................................................  36
Thornhill v. Alabama, 310 U. S. 88 (1940) .......................................................  36
Townsend v. Sain, 372 U. S. 293 (1963) ............................................................ 17
Turner v. Farmers’ Loan & Trust Co., 106 U. S. 552 (1882) ......................  45
United States v. Igoe, 331 F. 2d 766 ( 7th Cir. 1964) ...................................  45
United States v. Rice, 327 U. S. 742 (1946) .......................................................  45
United States v. Smith, 331 U. S. 469 (1947) ...................................... 45
United States v. W ood, 295 F. 2d 772 (5th Cir. 1961) ............................ 44
Virginia v. Rives, 100 U. S. 313 (1879) ............................................... 34,37,38,40
Williams v. Mississippi, 170 U. S. 213 (1898) .................................................  34
Wilson v. Commonwealth, 96 Pa. 56 (1880) .......................................................  6

Constitutional and Statutory Provisions and Rules.

Page

U. S. Const., Amend. I ............ .................1, 7, 21, 31, 33, 38, 39, 41, 42
u. S. Const., Amend. X III  . . . . 16
u. S. Const., Amend. X IV  . . . . . . .1 , 7, 16, 31, 34, 38, 39
u. S. Const., Amend. X V ........ . 16
28 U. S. C. § 1257 .................... . 44
28 U. S. C. § 1291 .................... . 44
28 U. S. C. §1331 .................... . 17
28 U. S. C. § 1441 .................... 17
28 u. S. C. §§ 1441-1444 ........ . 13
28 u. S. C. § 1442(a )(1 ) . . . . .22,28
28 u. S. C. § 1443 ...................... 11, 12, 17, 21, 26, 30, 42
28 u. S. C. § 1443(1) .............. . . . .1 ,  2, 7, 10, 11, 29, 30, 31, 33, 36, 37, 39, 40, 42
28 u. S. C. § 1443(2) .............. . . . .  1, 2, 7, 10, 11, 20, 21, 27, 29, 30, 31, 32, 33, 39
28 u. S. C. § 1447(d) .............. .43, 45
28 u. S. C. § 1651 ...................... . 45
28 u. S. C. §2241 ( c ) ( 3 )  ........ . 17
42 u. S. C. § 1983 .................... ...7 ,21,, 30, 31
Rev. Stat. § 641 ................ ......... ..25,26., 29, 31
Rev. Stat. § 1979 .............. ......... .21,30



Constitutional and Statutory Provisions and Rules (Continued).

Page
28 U. S. C. §74 (1940 ed.) ..................................................................................... 26
A ct of September 24, 1789, 1 Stat. 73 .................................................................. 14
Act of February 13, 1801, 2 Stat. 8 9 ...................................................................... 14
A ct of March 8, 1802, 2 Stat. 1 3 2 ..........................................................................  14
A ct of February 4, 1815, 3 Stat. 195 ....................................... .............................. 14, 22
A ct of March 3, 1815, 3 Stat. 231 ...........................................................................14,22
A ct of March 2, 1833, 4 Stat. 632 .................... .....................................................14,22
A ct of March 3, 1863, 12 Stat. 755 ........................................................................  20,23
A ct of March 7, 1864, 13 Stat. 14 ...........................................................................15,23
A ct of June 30, 1864, 13 Stat. 223 ..............................   15,23
A ct of March 3, 1865, 13 Stat. 507 .........................................................................15,27
A ct of April 9, 1866, 14 Stat. 2 7 ...............................................................................16,24
A ct of May 11, 1866, 14 Stat. 4 6 ..............................................................................  20
A ct of July 13, 1866, 14 Stat. 9 8 .............................................................................15,23
A ct of July 16, 1866, 14 Stat. 173 .......................................................................... 27
A ct of February 5, 1867, 14 Stat. 385 .................................................................... 17
A ct of May 31, 1870, 16 Stat. 140 .....................................................................16,25,29
A ct of April 20, 1871, 17 Stat. 13 .....................................................................16,25,31
A ct of March 1, 1875, 18 Stat. 335 ........................................................................ 16
A ct of March 3, 1875, 18 Stat. 470 ........................................................................ 17
Judicial Code of 1911, 36 Stat. 1087 ...................................................................... 26,44
Civil Rights A ct of 1964, 78 Stat. 241 .................................................................  43
Fed. Rule Civ. Pro. 81(b ) ......................................................................................  45
United States Court of Appeals for the Third Circuit, Rule 24(7) ............  44
Purdon’s Pa. Stat. Ann., 1963, tit. 18, §4302 ...................................................  3,6,36
Purdon’s Pa. Stat. Ann., 1963 Supp,, tit. 18, § 4314 ............................  3
Purdon’s Pa. Stat. Ann., 1963 Supp., tit. 18, § 4314.1 ........................  3
Purdon’s Pa. Stat. Ann., 1963, tit. 18, § 4401 ........................................  3
Purdon’s Pa. Stat. Ann., 1963, tit. 18, §4404 ...................................................  3 ,5 ,6
Purdon’s Pa. Stat. Ann., 1963, tit. 18, § 4 4 1 2 ...................................... 3
Purdon’s Pa. Stat. Ann., 1963, tit. 18, § 4612 ........................................ 3
Purdon’s Pa. Stat. Ann., 1963, tit. 18, § 4708 ........................................ 3
Purdon’s Pa. Stat. Ann., 1963, tit. 18, §4901.1 .................................................  3,6
Purdon’s Pa. Stat. Ann., 1963, tit. 18, § 4916 .....................................................  3
Acts of Virginia, 1865-1866, 91 (1866) ...............................................................  19
Ordinance No. 61 of 1962 of the City of Chester, Pennsylvania................... 36
Code of Ordinances of the City of Chester, Pennsylvania (1956), §16-13 2

TABLE OF CITATIONS (Continued).



T A B L E  O F C IT A T IO N S  (Continued). 

Other Sources.

Page
Cong. Globe, 37th Cong., 3d Sess............................................................................15-16
Cong. Globe, 39th Cong., 1st Sess............................................................................19-21
Revisor’s Note to 28 U. S. C. § 1443 .................................................................... 26
2 Commager, Documents of American History (6th ed. 1958) ..................... 19
III Elliot’s Debates (1836) ....................................................................................  14
I Farrand, Records of the Federal Convention (1911) ...................................  13
The Federalist, No. 80 (Hamilton) ........................................................................13, 14
The Federalist, No. 81 (Hamilton) ........................................................................ 13
1 Fleming, Documentary History of Reconstruction (Photo reprint 1960) 19
Frankfurter & Landis, The Business of the Supreme Court (1928) ..........  16
Hart & Wechsler, The Federal Courts and the Federal System (1953) ..13, 14 
McPherson, Political History of the United States During the Period of

Reconstruction (1871) ......................................................................................  20
1 Morison & Commager, Growth of the American Republic (4th ed. 1950) 14
Note, 109 U. Pa. L. Rev. 67 (1960) ........................................................................ 42
Brief for Respondents Rachel et al., O. T. 1963, No. 1361 Misc., Georgia

v. Tuttle, 84 S. Ct. 1940 (1964) .................................................................... 43



TABLE OF CONTENTS OF APPELLANTS’ APPENDIX.

Page

Docket Entries .........................................................................................    la

Petition for Removal ................................................................................................  2a

Motion to Remand .....................................................................    21a

Answer to Petition for Removal and Motion to Dismiss Said Petition . . .  22a

Excerpt of Hearing, June 30, 1964, on Motion to Remand: Colloquy 
between Hon. Thomas J. Clary, C. J., presiding, and counsel for 
defendants ............................................................................................................... 29a

Order of Remand ......................................................................................................... 31a

Amended Order ........................................................................................................... 33a

Notice of Appeal .....................................................   34a



QUESTION INVOLVED.

Did the District Court err in holding that appellants’ 
petitions for removal of criminal cases pending in Pennsyl­
vania state trial courts failed to sustain federal removal 
jurisdiction under 28 U. S. C. §1443(1), (2) (1958), the 
civil rights removal statute, where the petitions alleged 
that appellants were being prosecuted for acts in the exer­
cise of their constitutionally protected freedom of speech 
to protest racial discrimination, that the state statutes 
underlying the prosecution were unconstitutional on their 
faces or as applied under the First and Fourteenth Amend­
ments, and that the purpose and effect of the prosecutions 
were to repress constitutionally protected free speech and 
protest of racial discrimination?



2 Statement of the Case

S T A T E M E N T  O F T H E  C A S E .

Defendants (appellants in this Court) are ten of more 
than 240 persons arrested in connection with civil rights 
demonstrations in Chester, Pennsylvania, in February, 
March and April 1964, and thereafter prosecuted by state 
and local authorities for demonstration activities. The 
demonstrators 1 attempted to remove these prosecutions to 
the appropriate federal district court for trial pursuant to 
28 U. S. C. § 1443(1), (2) (1958), the civil rights removal 
section of the Judicial Code. On motion of the prosecution 
the cases were ordered remanded to the state courts for 
want of federal removal jurisdiction. These appeals chal­
lenge the propriety of the remand order.

(A) The Removal Proceedings Generally.
June 26, 1964, twenty-four petitions were filed in the 

United States District Court for the Eastern District of 
Pennsylvania, seeking to remove criminal prosecutions 
arising out of twelve separate civil rights demonstration 
episodes. Demonstrators arrested in each episode were 
prosecuted in two sorts of proceedings. Each was sum­
marily tried and convicted before a magistrate of the City 
of Chester for violation of two Chester ordinances, Ordi­
nance No. 61 of 1962 of the City of Chester (disorderly con­
duct), set out at App. 13a, and Code of Ordinances of the 
City of Chester, Pennsylvania (1956), §16-13 (non-compli­
ance with a police order), set out in the note.2 Demon­
strators were sentenced to the maximum penalties under

1. As used in this brief, “demonstrator” means a defendant prosecuted for 
demonstration activity. When these cases go to trial, numerous of the defend­
ants will take the position that they were not demonstrators, but bystanders. 
I heir description as demonstrators here portrays the role in which the prose- 
cution. seeks to cast them and which is controlling for purposes of removability 
of their prosecutions.

2. “ Sec. 16-13. Noncompliance with police order, etc.
“ No person shall refuse or fail to comply with any lawful order signal 

or direction of a police officer. (4-23-29, § 2 ;  Code 1943, ch. 17, § 2 . ) ”



Statement of the Case 3

each ordinance: $300 fine and $9 costs for disorderly con­
duct; $50 fine and $9 costs for non-compliance—a total of 
$350 fine plus $18 costs or imprisonment in default. Ap­
peals for trial de novo of these summary convictions were 
allowed by the Court of Common Pleas of Delaware County 
and the cases were pending for trial in the Court of Com­
mon Pleas at the time the removal petitions were filed. 
(These procedings are sometimes hereafter referred to as 
summary appeals.) (App. 2a-3a, 4a-5a.)

Each demonstrator was also indicted on several bills 
of indictment returned to the Court of Quarter Sessions 
of Delaware County. The offenses charged in the indict­
ments differed for the different demonstration episodes.3 
These prosecutions were pending in the Court of Quarter 
Sessions for trial at the time the removal petitions were 
filed. (They are sometimes hereafter referred to as indict­
able charges.) (App. 2a, 6a, 9a-10a.)

Most of the 240-odd defendants were charged with of­
fenses arising out of only one demonstration episode, some 
with offenses arising out of more than one. Two removal 
petitions were filed for each of the twelve demonstration 
episodes. One sought to remove the summary appeals of 
all defendants charged in connection with that episode; the

3. Only the offenses charged against the ten defendants involved in these 
appeals (all indicted on charges arising out of a single demonstration epi­
sode) appear in the record of the appeals. See pp. 5-6 infra. For the infor­
mation of the Court, the records of the District Court in the companion cases 
disclose that each of the approximately 240 demonstrators is charged with 
between two and seven of the following offenses: Purdon’s Pa. Stat. Ann., 
1963, tit. 18, §§4302 (conspiracy to do unlawful act), 4401 (riots, routs, assem­
blies, and affrays), 4404 (forcible detainer), 4412 (libel), 4612 (public 
nuisances), 4901.1 (unlawful entry), 4916 (malicious injury to property), and 
common-law conspiracy, citing 111 Super. 494 [Commonwealth v. Mack, 111 
Pa. Super. 494, 170 Atl. 429 (1934)], common-law inciting to riot, citing 169 
Super. 318 [Commonwealth v. Albert, 169' Pa. Super. 318, 82 A. 2d 695 (1951)], 
and common-law nuisance, citing l2  Pa. 412 [? ]. The pattern is to charge 
defendants involved in street demonstrations with riot, statutory and common- 
law nuisance, and statutory and common-law conspiracy; and to charge defend­
ants involved in “sit-ins”  in public buildings with forcible detainer, unlawful 
entry, statutory and common-law conspiracy, and sometimes riot. There are 
also a few indictments for violations of Purdon’s Pa. Stat. Ann., 1963, tit. 18, 
§4708 (assault and battery), and Purdon’s Pa. Stat. Ann., 1963 Supp., tit. 18, 
§§4314 (obstructing an officer), and 4314.1 (aggravated assault and battery 
upon a police officer).



4 Statement of the Case

other, the indictable charges against the same defendants 
(App. 2a). The twenty-four removal petitions were 
docketed in the District Court as Crim. Nos. 21764 through 
21787.

The two petitions constituting each pair relating to a 
single demonstration episode were identical save for cap­
tion. Thus the removal petition in Crim. No. 21764, City of 
Chester v. Anderson et al., was identical with the removal 
petition in Crim. No. 21765, Commonwealth of Pennsylva­
nia v. Anderson et al., except for the name of the prosecut­
ing authority. Each pair of removal petitions differed from 
every other pair in describing the demonstration episode 
involved, naming the defendants charged, and designating 
the indictable charges returned against them. Otherwise 
the twenty-four removal petitions were identical (App. 
3a).

June 29, 1964 a Motion for Remand was filed by the 
Commonwealth of Pennsylvania, asking that all the re­
moved cases (summary appeals as well as indictable of­
fenses) be remanded to the Pennsylvania courts for want 
of federal jurisdiction (App. 21a). June 30, 1964 an iden­
tical Answer to Petition for Removal and Motion to Dis­
miss Said Petition was submitted in each of the twenty- 
four removed cases (Filed July 6, 1964, App. 22a). In the 
morning of June 30, 1964 these motions by the prosecution 
were called for hearing before Chief Judge Clary of the 
District Court and argument was had. July 6, 1964 Chief 
Judge Clary entered his order reciting that the cases were 
improperly removed and granting the motion to remand 
all cases (App. 31a). July 7, 1964 Chief Judge Clary 
entered an amended order staying the remand “ pending ap­
peal to the United States Court of Appeals for the Third 
Circuit, of actions #21764 and #21765, in which cases no­
tices of appeal are being filed concurrently with this Order. 
Since cases #21766-21787 inclusive involve identical ques­
tions of law and fact as cases #21764 and #21765, these 
cases shall remain in this Court without remand, pending



Statement of the Case 5

final determination of the appeals in #21764 and #21765, 
and until further order of this Court”  (App. 33a).

July 7, 1964, notices of appeal were filed in Crim. Nos. 
21764 and 21765 (App. 34a). Crim. No. 21764 was there­
after docketed in this Court as Appeal No. 15014, and Crim. 
No. 21765 as Appeal No. 15015. A consent motion has been 
made to consolidate the appeals for purposes of appellants’ 
brief and appendix.

(B) Appeal Nos. 15014 and 15015.
The two identical removal petitions filed by the ten 

criminal defendants in each of these cases alleged the fol­
lowing : On February 20, 1964, at about 1 :30 P. M., defend­
ants were arrested by Chester policemen at the Chester 
School Administration Building. A group of spokesmen 
for equal civil rights had arrived at the Administration 
Building in order to discuss with authorities the problem 
of racial segregation and inequality that exists in the Ches­
ter school system. The group was invited to enter and 
remain in a room by an employee. The group remained 
there for a time and was told to leave. Not having accom­
plished their purpose, they refused to go. Police were 
called and the defendants were arrested (App. 4a).

The pattern of prosecutions arising out of this episode 
was described in the petitions as common to the approxi­
mately 240 demonstrators arrested in the twelve demon­
stration episodes underlying the twenty-four companion 
removal cases (App. 4a-5a). The summary conviction of the 
demonstrators for violation of the two Chester ordinances 
(disorderly conduct; non-compliance with a police order) 
described at p. 2, supra, and the pendency of their sum­
mary appeals in the Court of Common Pleas was recited 
(App. 4a-5a). It was alleged that additionally the 240-odd 
demonstrators were indicted on several state statutory and 
common-law charges (App. 6a, 9a-10a); specifically, the ten 
defendants herein were charged in four bills with violations 
of (1) Purdon’s Pa. Stat. Ann., 1963, tit. 18, § 4404 (forcible



6 Statement of the Case

detainer),4 (2) Pardon’s Pa. Stat. Ann., 1963, tit. 18, 
§4901.1 (unlawful entry),5 6 (3) Purdon’s Pa. Stat. Ann., 
1963, tit. 18, § 4302 (conspiracy),8 and (4) common-law con­
spiracy.7 It was alleged that the “ acts for which [de­
fendants] . . . are being held to answer for offenses 
. . . are, insofar as the offenses charged have any basis

4. Ҥ. 4404. Forcible detainer
“ Whoever, by force and with a strong hand, or by menaces or threats, 

unlawfully holds and keeps possession of any lands or tenements, whether 
the possession was obtained peaceably, or otherwise, is guilty of forcible 
detainer, a misdemeanor, and upon conviction thereof, shall be sentenced 
to pay a fine not exceeding five hundred dollars ($500), or to undergo 
imprisonment not exceeding one (1 ) year, or both, and to make restitution 
of the lands and tenements unlawfully detained.

“ No person shall be adjudged guilty of forcible detainer, if such person, 
by himself, or by those under whom he claims, have been in peaceable 
possession for three (3 ) years next preceding such alleged forcible detention. 
1939, June 24, P. L. 872, § 404.”
5. Ҥ 4901.1. Unlawful entry

“Whoever under circumstances or in a manner not amounting to bur­
glary enters a building, or any part thereof, with intent to commit a crime 
therein, is guilty of unlawful entry, a misdemeanor, and upon conviction 
thereof, shall be sentenced to pay a fine not exceeding five hundred dollars 
($500) or to undergo imprisonment not exceeding one year, or both. 1939, 
June 24, P. L. 872, § 901.1, added 1959, Nov. 19, P. L. 1518, No. 532, § 1.”
6. Ҥ 4302. Conspiracy to do unlawful act

“Any two or more persons who falsely and maliciously conspire and 
agree to cheat and defraud any person of his moneys, goods, chattels, or 
other property, or do any other dishonest, malicious, or unlawful act to the 
prejudice of another, are guilty of conspiracy, a misdemeanor, and on con­
viction, shall be sentenced to pay a fine not exceeding five hundred dollars 
($500), or to undergo imprisonment, by separate or solitary confinement 
at labor or by simple imprisonment, not exceeding two (2 ) years, or both. 
1939, June 24, P. L. 872, § 302.”
7. The indictment cites 111 Super. 494. The citation refers to Common­

wealth v. Mack, 111 Pa. Super. 494, 170 Atl. 429 (1934), sustaining common- 
law conspiracy convictions of defendants shown to have made wilfully false 
criminal charges against other persons. The court quotes Wilson v. Common­
wealth, 96 Pa. 56, 59 (1880) : “ ‘A  conspiracy at common law is a much broader 
offense [than statutory conspiracy, see note 6 supra], and embraces cases where 
two or more persons combine, confederate and agree together to do an unlawful 
act, or to do a lawful act by the use of unlawful means.’ ” I l l  Pa. Super, at 
497, 170 Atl. at 430. “Unlawful” in this context does not mean criminal, i.e., 
denounced by a specific criminal statute, 111 Pa. Super, at 498, 170 Atl. at 
430-431. The court says: “ In the case of Com. v. Carlisle, Brightly’s Rep. 36, 
39, Mr. Justice Gibson pointed out the difficulties in defining the exact limits 
of the possible objects of a conspiracy, but after some discussion of the subject 
made this general statement: W here the act is lawful for an individual, it can 
be the subject of a conspiracy, when done in concert, only where there is a 
direct intention that injury shall result from it, or where the object is to benefit 
the conspirators to the prejudice of the public or the oppression of individuals, 
and where such prejudice or oppression is the natural and necessary conse­
quence.’ ”  I l l  Pa. Super, at 498-499, 170 Atl. at 431.



Statement of the Case 7

in fact, acts in the exercise of [defendants’ ] . . . rights 
of freedom of speech, assembly and petition, guaranteed 
by U. S. Const., Amends. I, XIV, and 42 U. S. C. § 1983 
(1958), to protest [inter alia] . . . unlawful racial dis­
crimination against Negroes in the schools of the City of 
Chester, violating the rights of petitioners and others simi­
larly situated”  under the federal Constitution and laws 
(App. 6a), and hence that defendants “ are being prose­
cuted for acts done under color of authority derived from 
the federal Constitution and laws providing for equal 
rights”  (App. 6a), within the meaning of the applicable 
removal statute, 28 U. S. C. § 1443(2) (1958). It was fur­
ther asserted that some of the statutes and common-law 
doctrines under which the defendants were prosecuted were 
unconstitutional on their face for vagueness (App. 7a), 
and that the arrests and prosecutions of defendants were 
carried on with the sole purpose and effect of harassing 
the defendants, punishing them for, and deterring them 
from, exercising their constitutionally protected rights of 
free expression to protest unconstitutional discrimination 
(App. 6a-7a). This harassment was alleged to be pursuant 
to a policy of racial discrimination and repression of 
Negroes’ free speech by state and local officials, evidenced 
by the multiplication of criminal charges, some federally 
unconstitutional on their face, against the defendants (App. 
7a).

Additionally, it was alleged that the defendants “ have 
been denied, are being denied, and cannot enforce in the 
courts of the Commonwealth of Pennsylvania rights under 
the cited federal constitutional and statutory sections pro­
viding for the equal rights of citizens . . . and of all 
persons”  (App. 7a), within the meaning of 28 U. S. C. 
§1443(1) (1958), because First Amendment freedoms to 
protest racial discrimination were involved and the state 
courts were hostile (App. 7a). Particularizing the charge 
of hostility, detailed factual allegations were made tending 
to support the conclusions that excessive and increasing



8 Statement of the Case

bond was demanded of arrested demonstrators (App. 7 a- 
8a), that the 240 demonstrators were being pressed to trial 
on the indictable charges with such speed that they would 
not have time adequately to prepare their federal constitu­
tional and other defenses (App. 9a-12a), and that news­
paper and radio publicity in Delaware County, for which 
police brutality in suppressing the civil rights demonstra­
tions and a public statement by the Lieutenant Governor of 
Pennsylvania endorsing police use of force as necessary to 
maintain law and order were responsible, had created in 
the county an atmosphere of prejudice against the defend­
ants which made a fair trial impossible (App. 8a-9a), par­
ticularly because of the restrictive Pennsylvania practice in 
respect of change of venue and voir dire examination of 
jurors (App. 9a), and because the state trial judges are 
elected judges politically responsible to the racially hostile 
and fearful county electorate (App. 9a).

The Answer to Petition for Eemoval and Motion to 
Dismiss Said Petition in effect denied all of the material 
allegations of fact of the removal petitions (App. 22a-28a), 
and affirmatively alleged ‘ ‘ that there is no problem of civil 
rights involved in the present State prosecution”  (App. 
23a), that “ the prosecution in all of these cases has been 
conducted in the usual manner in which all State prosecu­
tions are conducted”  (App. 23a), and that “ the criminal 
acts for which defendants are being prosecuted are crimes 
which have been part of the law of Pennsylvania for many 
years, and which crimes have been interpreted and re­
interpreted by the various Courts in Pennsylvania, as well 
as Federal Courts”  (App. 24a). Additionally, allegations 
of fact were made tending to support the conclusion that 
defendants were not being rushed to trial with such speed 
that they could not adequately prepare their defenses (App. 
25a-27a).

On the same morning when the Answer was served the 
prosecution’s motion to remand, based on the Answer, was



Statement of the Case 9

argued before Chief Judge Clary. After counsel were 
heard on the issue of construction of the removal statute 
invoked, the court asked counsel for the defendants: “ Do 
you want to go any further? Do you want to try to estab­
lish, although I don’t know how you could, your allegations 
of basic hostility of the courts and people of Delaware 
County?”  (App. 29a). Counsel replied that his chief 
grounds for removal did not depend on evidentiary ques­
tions, but that insofar as the prosecution’s Answer had 
denied the allegations of the removal petition counsel was 
not inclined to leave the allegations unproved and would 
like a hearing (App. 29a). The court said that it was 
“ ready to proceed right now”  (App. 29a). Counsel for de­
fendants said that he had no witnesses ready that same 
morning on issues of such complexity and would want ade­
quate time to prepare for a hearing (App. 29a-30a). The 
court asked what such a hearing would involve. Counsel 
replied that persons familiar with the community would be 
called to testify as to the atmosphere and attitude in Dela­
ware County, and that public officials would be called to 
testify concerning their attitude and reasons for the prose­
cution (App. 30a).8 The court thereupon refused a hearing 
and took the matter under advisement (App. 30a). Subse­
quently, “ upon consideration of plaintiffs’ Motion for Re­
mand, hearing held and argument had thereon, and after a 
thorough examination and careful consideration of the well- 
pleaded factual (as opposed to psychological and conclu- 
sory) averments set forth in defendants’ petitions for 
removal, and the points raised and authorities cited therein, 
as well as the records of the Court of Quarter Sessions of 
the Peace and General Jail Delivery of Delaware County, 
and the Court of Common Pleas of Delaware County, sub­
mitted therewith,”  the court held the cases improperly re­
moved and remanded them to the respective state courts 
(App. 31a-32a).

8. Defense counsel further offered to proceed by deposition, in lieu of 
hearing in open court (App. 30a).



10 Statement of the Case

On this record it is clear that Chief Judge Clary prop­
erly treated the motion to remand as addressed to the face 
of the removal petitions and supporting state-court docu­
ments, and that he held the petitions’ well pleaded allega­
tions insufficient to sustain federal jurisdiction under 28 
U. S. C. § 1443(1), (2) (1958), Thus the issue on this ap­
peal is whether the removal papers pleaded a sufficient case 
for removal under the statute.



A R G U M E N T .

Argument 11

(A) Introduction.

( 1 )  S u m m a r y .

In the District Court, defendants took the position that 
their petitions for removal adequately invoked federal re­
moval jurisdiction on four principal theories: (1) that the 
acts for which they were prosecuted were acts ‘ ‘ under color 
of authority derived from any law providing for equal 
rights,”  within 28 U. S. C. § 1443(2) (1958); and that they 
were denied and could not enforce their federally protected 
equal civil rights in the state courts, within 28 U. S. C. 
§ 1443(1) (1958), because (2) the statutes under which they 
were prosecuted were unconstitutional under the First and 
Fourteenth Amendments; (3) the conduct for which defend­
ants were prosecuted was conduct protected by the First 
and Fourteenth Amendments and federal civil rights legis­
lation, and the maintenance of state court prosecutions for 
such conduct in itself punished and deterred the exercise 
of federal civil rights; and (4) by reason of public hostility, 
precipitous trial and other circumstances attending the 
state prosecutions, defendants could not obtain a fair trial 
in the state courts. On this appeal, defendants rely on the 
first three of these theories, argued as points (B), (C) and 
(D) infra® In anticipation of an attack upon the jurisdic- 9

9. For the information of the Court, defendants wish to indicate that their 
abandonment here of the fourth theory—which may be briefly characterized as 
a theory of actual hostility on the part of the state courts— is motivated by 
three principal considerations. (1 ) As Congress recognized in enacting §901 
of the Civil Rights A ct of 1964, infra, p. 43, the obtaining of an adequate 
judicial construction of the federal civil rights removal provisions, 28 U. S. C. 
§ 1443 (1958), is o f prime importance to the civil rights movement in this 
country. Cases are now pending in the Fourth, Fifth and Sixth Circuits in 
which civil rights demonstrators seeking removal rely upon the same theories 
put forward by defendants in the present case, including the “hostility” theory. 
In some of these cases—particularly cases arising in Mississippi and Alabama— 
the record on the issue of hostility is more favorable to removal than the 
record made by facts which defendants could conscientiously allege or practicably 
prove in the present case. Accordingly, defendants think it best to let the 
hostility issue come to the federal Courts of Appeals, and the Supreme Court 
if need be, first in the Southern cases. (2 ) In the present case, defendants 
could prevail on the hostility theory only after an evidentiary hearing in the 
District Court, on remand by this Court, in which factual allegations made in



12 Argument

tion of this Court to review the remand order of the Dis­
trict Court, defendants in point (E) infra support the 
Court’s appellate jurisdiction.

(2 ) T h e  R emoval S tatute and I ts H istoby.

Defendants’ arguments for removal rely upon 28 
U. S. C. § 1443 (1958), which provides:

“ § 1443. Civil rights cases.
“ Any of the following civil actions or criminal 

prosecutions, commenced in a State court may be re­
moved by the defendant to the district court of the 
United States for the district and division embracing 
the place wherein it is pending:

“ (1) Against any person who is denied or 
cannot enforce in the courts of such State a right 
under any law providing for the equal civil rights 
of citizens of the United States, or of all persons 
within the jurisdiction thereof;

“  (2) For any act under color of authority de­
rived from any law providing for equal rights, or 
for refusing to do any act on the ground that it 
would be inconsistent with such law. (June 25, 
1948, ch. 646, 62 Stat. 938.) ”

It is important at the outset to see this statute in the 
grain of history. Progressively since the inception of the 
Government, federal removal jurisdiction has been ex­
the removal petitions and denied in the prosecution’s Answer would be explored. 
Even following such a hearing, further federal appellate proceedings might be 
required. Defendants and their counsel lack the resources for such extended 
proceedings. (3 ) The passage of time since the filing of the removal petitions 
m this case has affected several of the evidentiary issues raised by the hos­
tility theory, particularly the issues of community hostility and fear and of 
precipitated state court trial making impossible adequate preparation of federal 
defenses.

Defendants should make clear that in abandoning a theory of actual hos­
tility of the state courts, they do not abandon the theory that inherently all 
state courts (and particularly those whose judges are elected) are less sym­
pathetic to federal constitutional rights than are the federal courts. This theory, 
on which is based congressional creation of federal trial courts and particularly 
the federal civil rights removal jurisdiction, is essential to defendants’ points 
(B ) ,  (C ) and (D )  infra. P



Argument 13

panded by Congress 10 to protect national interests in cases 
" in  which, the state tribunals cannot be supposed to be im­
partial and unbiased,” 11 for, as Hamilton wrote in The 
Federalist, "The most discerning cannot foresee how far 
the prevalency of a local spirit may be found to disqualify 
the local tribunals for the jurisdiction of national causes 
. . . ” 12 In the federal convention Madison pointed out 
the need for such protection, just before he successfully 
moved the Committee of the Whole to authorize the na­
tional legislature to create inferior federal courts: 13

"M r. [Madison] observed that unless inferior 
tribunals were dispersed throughout the Bepublic with 
final jurisdiction in many cases, appeals would be multi­
plied to a most oppressive degree; that besides, an 
appeal would not in many cases be a remedy. What 
was to be done after improper Verdicts in State trib­
unals obtained under the biassed directions of a de­
pendent Judge, or the local prejudices of an undirected 
jury? To remand the cause for a new trial would 
answer no purpose. To order a new trial at the su­
preme bar would oblige the parties to bring up their 
witnesses, tho’ ever so distant from the seat of the 
Court. An effective Judiciary establishment commen­
surate to the legislative authority, was essential. A

10. See H art & W echsler, T he Federal Courts and T he F ederal Sys­
tem 1147-1150 (1953). Before 1887, the requisites for removal jurisdiction 
were stated independently of those for original federal jurisdiction; since 1887, 
the statutory scheme has been to authorize removal generally of cases over 
which the lower federal courts have original jurisdiction and, additionally, to 
allow removal in special classes of cases particularly affecting the national 
interest: suits or prosecutions against federal officers, military personnel, per­
sons unable to enforce their equal civil rights in the state courts, persons acting 
under color of authority derived from federal law providing for equal rights 
or refusing to act inconsistently with such law, the United States (in fore­
closure actions), etc. 28 U. S. C. §§ 1441-1444 (1958) ; see H art & W echsler, 
supra, at 1019-1020.

11. T he F ederalist, No. 80 (Hamilton) (Warner, Philadelphia ed. 1818), 
at 429.

12. Id., No. 81, at 439.
13. I F arrand, R ecords of the F ederal Convention 125 (1911). Mr. 

Wilson and Mr. Madison moved the matter in pursuance of a suggestion of 
Mr. Dickinson.



14 Argument

Government without a proper Executive & Judiciary 
would be the mere trunk of a body without arms or legs 
to act or move.”  14

The Judiciary Act of 1789 allowed removal in specified 
classes of cases where it was particularly thought that local 
prejudice would impair national concerns.15 But it was not 
then supposed that the necessary and proper place for the 
trial litigation of all issues of federal law was in the fed­
eral courts, and no general “ federal question”  jurisdiction 
was given to those courts either in original actions or on 
removal.16 Bather, during three quarters of a century fed­
eral trial jurisdiction was created ad hoc in special situa­
tions where there was more than ordinary cause to distrust 
the state judicial institutions. Extensions of the removal 
jurisdiction particularly were employed in 1815 and 1833 to 
shield federal customs officials, respectively, against New 
England’s resistance to the War of 1812 and South Caro- 
lina’s resistance to the tariff.17 Thirty years later, to meet 

14. I id. 124.
r *S- ,T he A ct Of September 24, 1789, ch. 20, § 12, 1 Stat. 73, 79-80, authorized 
removal m three classes of cases where more than $500 was in dispute: suits 
Dy a citizen of the forum state against an outstater; suits between citizens of the 
same state in which the title to land was disputed and the removing party set 
up an outstate land grant from the forum state; suits against an alien. The 
11 If.1 J b ,0 classes were specifically described by Hamilton as situations “ in 
which the state tribunals cannot be supposed to be impartial,” T he Federalist, 
No. 80 (Hamilton) (Warner, Philadelphia ed. 1818), at 432; and Madison 
speaking of state courts in the Virginia convention, amply covered the third • 

We well know sir, that foreigners cannot get justice done them in these 
courts . . .  I l l  E lliot’s Debates 583 (1836).

16. See H art & W echsler, T he Federal Courts and T he Federal 
Svstem 727-733 (1953). General federal question jurisdiction was conferred 
by the brief-lived federalist A ct of February 13, 1801, ch 4 8 11 2 Stat 89 
92 repealed by the A ct of March 8, 1802, ch. 8, 2 Stat. 132. ' i t  w as'not 
restored until 1875. See text infra.

at *  Fl >  „ 1815’ cb; , 31’ §8 > 3 Stat 19S. 198 i also A ct ofMarch 3, 1815, ch. 43, § 6, 3 Stat. 231, 233. Concerning Northern resistance 
to the W ar culminating in the Hartford Convention of 1814-1815, see 1 
MORISON & Commager, Growth of the A merican R epublic 426-429 (4th ed.

~ ( J 1, ̂  March 2, 1833, ch. 57, §3, 4 Stat. 632, 633. Concerning South
Carolina s resistance to the successive tariffs, culminating in the nullification 
ordinance, see 1 M orison & Commager, supra, 475-485. The Force A ct of 
March 2, 1833, responded to the Southern threat not merely by extending the 
removal jurisdiction of the federal courts, but by establishing a new head of 
habeas corpus jurisdiction. Section 7, 4 Stat. 632, 634. See Fay v. Noia 372 
U. S. 391, 401 n. 9 (1963).



Argument 15

the new stresses of the Civil War, Congress extended the 
1883 act to cover cases involving internal revenue collec­
tion as well as collection of customs duties. Act of March 
7, 1864, ch. 20, § 9, 13 Stat. 14, 17; Act of June 30, 1864, ch. 
173, § 50, 13 Stat. 223, 241; Act of July 13, 1866, ch. 184, 
§§ 67-68,14 Stat. 98, 171,172, p. 23, infra. And when by the 
Act of March 3, 1863, ch. 81, 12 Stat. 755, Congress author­
ized the President to suspend the writ of habeas corpus, and 
barred civil and criminal actions against persons making 
searches, seizures, arrests and imprisonments under Presi­
dential orders during the existence of the rebellion, it pro­
vided by § 5, 12 Stat. 756, for removal of any suit or prose­
cution against officers or persons for arrests or imprison­
ments made, or other trespasses or -wrongs done or com­
mitted, or any act omitted to be done, during the rebellion, 
by virtue or under color of any authority derived from or 
exercised under the President or act of Congress. See 
pp. 23-24, infra. The debates on passage of this 1863 act re­
flect congressional concern that federal officers could not 
receive a fair trial in hostile state courts, and also echo 
Madison’s fear that the appellate supervision of the Su­
preme Court of the United States would be inadequate to 
rectify the decisions of lower state tribunals having the 
power to find the facts.18

18. A  provision confirming the application of the act to criminal as well 
as civil proceedings was added by amendment on the Senate floor after the 
favorable reporting of the House Bill, as amended (so  substantially as to 
amount to a substitute bill) by the Senate Committee on the Judiciary. (The 
House Bill is set out at Cong. Globe, 37th Cong., 3d Sess. 21 (12 /8 /62 ), as 
introduced, id. at 20 (12 /8 /62 ), and as passed, id. at 22 (1 2 /8 /6 2 )) . The bill 
as reported_ by the Senate Committee on the Judiciary id. at 321 (1 /14 /63 ), 
is set out, id. at 529 (1 /27 /63 ). Mr. Harris moved to amend it by adding to 
the removal provision, qualifying the description of removable actions, the 
words: “ civil or criminal.”  Id. at 534 (1 /27 /63 ). The chairman of the Ju­
diciary Committee, Mr. Trumbull, did not support the amendment. Ibid. Mr. 
Clark, who did, supposed the case of state officers killed by the federal marshal 
in an attempt to execute state-court habeas corpus process in respect of a 
prisoner held by the marshal under authority of the Secretary of W a r ; “ . . . 
what sort r f fair trial could the marshal have had in the State court, where 
the authorities of the State were arrayed on one side and the United States 
on the other?” Id. at 535 (1 /27 /63 ). Mr. Cowan also supported the amend­
ment in the brief debate which immediately preceded its adoption; he hypothe­
sized the case of a federal officer who killed a man he was attempting to arrest 
under presidential warrant and he took the view that the officer ought to have



16 Argument

The Civil War radically changed the view which the 
national legislature had previously taken, that generally 
the state legislatures, courts and executive officials were the 
sufficient protectors of the rights of the American people. 
The Thirteenth, Fourtenth and Fifteenth Amendments
wrote into the Constitution broad new guarantees of lib­
erty and equality in which the federal government commit­
ted itself to protect the individual against the States. The 
four major civil rights acts undertook to elaborate and 
effectively establish the new liberties and, significantly, each 
of the acts contained jurisdictional provisions making the 
federal courts the front line of federal protection.19 No 
longer was it assumed that the state courts were the normal 
place for the enforcement of federal law save in the rare 
and narrow cases where they showed themselves unfit or 
unfair. Now the federal courts were seen as the needed 
organs, the ordinary and natural agencies, for the admin­
istration of federal rights. Frankfurter & Landis, T he 
B usiness op th e  S upbeme C ourt 64-65 (1928). This is ap­
parent not only in the purpose of the civil rights acts them­
selves to create a supervening federal trial jurisdiction. * •
the right to remove a state indictment against him. Id. at 537-538 (1 /27 /63 ).
• rL  c 1 e m(5ulll :d why a trial in the state court, subject to a right of review 

S w rei? ec S ° ’)rit/o °v /5 f  United States, would not suffice to protect the 
officer. Id. at 538 (1 /27 /63 ). Mr. Cowan replied: “ Mr. President, only the 
indictment goes into the court upon a special allocatur. The testimony could 

nothmg the indictment and the simple plea would g o ; and upon 
that the court could not determine the character of his defense. Besides, the 
character of this defense is one of fact to a great extent, and might depend on 
probable cause, and that has to be passed upon by a jury under the direction 
of the court; because if the court could pass upon the question of fact, there is 
an end of it; no appeal lies from a tribunal which is intrusted with the deter­
mination of questions of fact. In the first place, the question on which the 
defense rests must exist m criminal cases, as a general rule, in parol— this order 
of the President may have been by parol—and it must be submitted to the 
jury, and determined by the jury under the direction of the court, with authority 
to try it. I do not undertake to say that the criminal might not submit himself 
to that jurisdiction, because the jurisdiction of the United States is not exclusive. 
He tnight submit to it, but if he was desirous to have the question determined 
m the courts of the United States, he has unquestionably a clear right to have 
it so determined. Ibid. (M r. Cowman is reported, ibid., as voting against the 
amendment, although he voted for passage of the bill as amended, id. at 554.)

19. A ct of April 9, 1866, ch. 31, §3, 14 Stat. 27; A ct of May 31 1870 ch 
114, §§ 8, 18, 16 Stat. 140, 142, 144; A ct of April 20, 1871, ch. 22 S 1 17 Stat’ 
13; A ct of March 1, 1875, ch. 114, § 3, 18 Stat. 335, 336.



Argument 17

See Monroe v. Pape, 365 U. S. 167 (1961); McNeese v. 
Board of Education, 373 U. S. 668 (1963). It is apparent 
also in the enactment of the Act of February 5, 1867, ch. 28, 
14 Stat. 385, the federal habeas corpus statute now found in 
28 U. S. C. § 2241(c) (3) (1958), which assured that every 
state criminal defendant having a federal defensive claim 
would have a federal trial forum for the litigation of the 
facts underlying that claim. See Fay v. Noia, 372 IT. S. 391 
(1963); Townsend v. Sain, 372 U. S. 293 (1963). And it is 
particularly apparent in the Judiciary Act of March 3, 
1875, ch. 137, 18 Stat. 470, which created general “  federal 
question”  jurisdiction in original and removed civil actions 
and thus wrote permanently into national law the provision 
of a federal trial court for every civil litigant engaged in a 
significant controversy based on a claim arising under the 
federal Constitution and laws. See 28 U. S. C. §§ 1331, 
1441 (1958). driven the post-Civil War view of the state 
courts, the justification for such a federal trial jurisdiction 
is obvious enough. England v. Louisiana State Board of 
Medical Examiners, 375 U. S. 411, 416-417 (1964):

“ Limiting the litigant to review here [the Su­
preme Court] would deny him the benefit of a federal 
trial court’s role in constructing a record and making 
fact findings. How the facts are found will often dic­
tate the decision of federal claims. ‘ It is the typical, 
not the rare, case in which constitutional claims turn 
upon the resolution of contested factual issues. ’ Town­
send v. Sain, 372 U. S. 293, 312. ‘ There is always in 
litigation a margin of error, representing error in fact 
finding. . . . ’ Speiser v. Randall, 357 U. S. 513, 525.
. . . The possibility of appellate review by this 
Court of a state court determination may not be sub­
stituted, against a party’s wishes, for his right to liti­
gate his federal claims fully in the federal courts.”
The removal provisions upon which defendants herein 

rely, present 28 IT. S. C. § 1443 (1958), originate in the



18 Argument

earliest of these post-Civil War enactments: the civil rights 
act of 1866, passed by the 39th Congress. See pp. 24-25, 
infra. The attitude of that Congress toward the state courts 
is evident; 20 it is perfectly expressed by Senator Lane of 
Indiana in debate on the 1866 act:

“ What are the objects sought to be accomplished 
by this bill? That these freedmen shall be secured in 
all the rights, privileges, and immunities of freedmen; 
in other words, that we shall give effect to the procla­
mation of emancipation and to the constitutional 
amendment. How else, I ask you, can we give them 
effect than by doing away with the slave codes of the 
respective States where slavery was lately tolerated? 
One of the distinguished Senators from Kentucky [Mr. 
G u t h r i e ] says that all these slave laws have fallen 
with the emancipation of the slave. That, I doubt not, 
is true, and by a court honestly constituted of able and 
upright lawyers, that exposition of the constitutional 
amendment would obtain.

“ But why do we legislate upon this subject now? 
Simply because we fear and have reason to fear that 
the emancipated slaves would not have their rights in 
the courts of the slave States. The State courts al­
ready have jurisdiction of every single question that 
we propose to give to the courts of the United States, 
why then the necessity of passing the law? Simply 
because we fear the execution of these laws if left to * •

, 2 ° , S -  Blyew v. United States, 13 Wall. 581, 593 (1871) 
of the 1866 act was v ' The purpose

• ' to guf.rd all the declared rights of colored persons, in all
civil actions to which they may be parties in interest, byP giving to the 
District and Circuit Courts of the United States jurisdiction of such actions
t t r eArJ  he S-ta-e r rtS any- right enjoyed br  white c’ tizens is denied them. And m criminal prosecutions against them, it extends a like pro-
whj’ h11' ^ Y aiT 0t exPected to be ignorant of the condition of thmgs 
which existed when the statute was enacted, or of the evils which it wfs
exUte8d 1S f el1 ,known that in many of the States, laws
existed which subjected colored men convicted of criminal offenses to



Argument 19

the State courts. That is the necessity for this pro­
vision.* 21

The 1866 removal provisions were reenacted in 1870, see 
p. 25, infra, and expanded by the Ku Klux Act of 1871, see 
pp. 31-32, infra, a statute whose legislative history, equally 
with that of the original 1866 act, demonstrates extreme 
congressional distrust of the state courts. See Monroe v. 
Pape, supra. There can be no doubt that the Congress 
which enacted these statutes meant broadly to remove civil 
rights litigation from the state to the federal courts, for 
fear that the state courts generally would fail adequately 
to protect the new-created nationally guaranteed liberties 
of the individual. It remains to be seen whether the lan­
guage used was ample to effect that purpose in the present 
case.

punishments different from and often severer than those which were in­
flicted upon white persons convicted of similar offenses. The modes of 
trial were also different, and the right of trial by jury was sometimes denied 
them. I t is also well known that in many quarters prejudices existed 
against the colored race, which naturally affected the administration of 
justice in the State courts, and operated harshly when one of that race 
was a party accused. These were evils doubtless which the act of Congress 
had in view, and which it intended to remove. And so far as it reaches, 
it extends to both races the same rights, and the same means of vindicating 
them.” (Emphasis added.)
21. Cong. Globe, 39th Cong., 1st Sess. 602 (2 /2 /6 6 ). See also Mr. Broom- 

all in the House debates, id., at 1265 (3 /8 /6 6 ). It is clear that a principal 
purpose of the 1866 act was to counteract the Black Codes, legislation enacted 
by the southern legislatures after emancipation to oppress the freedmen. The 
Codes are often referred to in debate, usually for the purpose of demonstrating 
that, unless restrained by federal authority, the southern States would dis­
criminate against the Negro and deprive him of his liberty. In the Senate: 
Id. at 474 (Trumbull, 1 /29/66), 602 (Lane, 2 /2 /66 ), 603 (W ilson, 2 /2 /66 ), 
605 (Trumbull, 2 /2 /6 6 ) ; in the House: id. at 1118 (W ilson, 3 /1 /66 ), 1123- 
1125 (Cook, 3 /1 /66 ), 1151 (Thayer, 3 /2 /66 ), 1160 (Windom, 3 /2 /66 ), 1267 
(Raymond, 3 /8 /66 ). While most of the Codes were discriminatory on their 
face, applying only to the freedmen, see, e.g., 2 Commager, D ocuments of 
A merican H istory 2-7 (6th ed. 1958); 1 Fleming, D ocumentary H istory 
of R econstruction 273-312 (Photo reprint 1960), not all were of this sort. 
Much mention was made in the debates of the southern vagrancy laws, e.g., 
Cong. Globe, 39th Cong., 1st Sess. 1123-1124 (Cook in the House, 3 /1 /66) ; 
1151 (Thayer in the House, 3 /2 /66 ), and particularly of the vagrancy law of 
Virginia, id. at 1160 (W indom in the House, 3 /2 /66) ; 1759 (Trumbull in the 
Senate, 4 /4 /66 ). This was a color-blind statute, Acts of Virginia, 1865-1866, 
91 (A ct of January 15, 1866) (1866), whose evil lay in its systematically dis­
criminatory administration by the Virginia courts. See Cong. Globe, 39th 
Cong., 1st Sess. 603 (W ilson in the Senate, 2 /2 /66 ). As Congress knew, the 
Union military commanders in the southern districts had already taken steps 
to protect the freedmen from such judicial maladministration by providing



20 Argument

(B) Defendants’ Removal Petitions Sufficiently State a 
Removable Case Under 28 U. S, C. § 1443(2).
Subsection (2) of 28 U. S. C. § 1443 allows removal by 

a defendant of any prosecution “ For any act under color 
of authority derived from any law providing for equal 
rights.”  The provision has been little litigated and never * 46
military courts to supersede the civil courts in cases involving the freedmen, 
e.g., id. at 1834 (4 /7 /6 6 ); M cP herson, P olitical H istory of the U nited 
States D uring the P eriod of R econstruction 41-42 (1871), and the removal 
provisions of the 1866 act undoubtedly intended to give the freedmen the same 
protection.

Further^ overwhelming evidence that Congress recognized the need for 
removal jurisdiction to protect federal interests from exposure to litigation in 
biased and hostile state trial courts is found in the debates on the bill, H. R. 
238, 39th Cong., which was enacted as the A ct of May 11, 1866, ch. 80, 14 Stat.
46. This bill was debated contemporaneously with the Civil Rights A ct of 
1866; it strengthened the removal provisions of the A ct of March 3. 1863, 
ch. 81, 12 Stat. 755— the provisions for removal which were adopted by refer­
ence, together with all amendments, in the Civil Rights A ct of 1866, see pp. 
24-2$ infra— by (1 ) extending the time for removal up to the point of em­
paneling of the jury in the state court, (2 ) eliminating the 1863 requirement 
of a removal bond, (3 ) directing that upon the filing of a proper removal 
petition all state proceedings should cease, and that any state court proceedings 
after removal should be void and all parties, judges, officers or other persons 
prosecuting such proceedings should be liable for damages and double costs to 
the removing party, and (4 ) directing the clerk of the state court to furnish 
copies of the state record to a party seeking to remove, and permitting that 
party to docket the removed case in the federal court without attaching the 
state record in case of refusal or neglect by the state court clerk. These 
debates demonstrate thorough congressional awareness of the extreme hostility 
of the Southern state trial courts, their arbitrary discrimination against federal 
interests, and their wilful refusal to protect federal rights. Cong. Globe, 39th 
Cong., 1st Sess. 1S26 (M cKee, in the House, 3 /20/66), 1327 (Garfield, in the 
House, 3 /20/66), 1327-1528 (Smith, in the House, 3 /20/66), 1329-1330 (Cook, 
who reported the bill from the House Committee on the Judiciary, id. 1368 
(3 /13 /66 ), and was its floor manager, id. 1387 (2 /14 /66 ), in the House, 
3 /20/66), 2021 (Clark, in the Senate, 4 /18/66), 2054 (W ilson and Clark, in 
the Senate, 4 /20/66), 2055 (Trumbull, Chairman of the Senate Committee on 
the Judiciary, in the Senate, 4 /20/66). A  particularly pertinent exchange is 
that between Senator Doolittle, who opposed the provision making state judges 
liable for damages for proceeding in defiance of a removal petition, and Senator 
Clark, who reported the bill from the Senate Committee on the Judiciary, id. 
1753 (4 /4 /66 ) and was its floor manager, id. 1880 (4/11/66) :

“ Mr. Doolittle: I think we ought to presume that the judge of a State, 
in his judicial office, who by the Constitution of the United States is bound 
to take an oath that he will support the Constitution of the United States, 
and all laws made in pursuance thereof, anything contained in any State 
constitution or law to the contrary notwithstanding, will not violate his 
oath of office. . . . [I ]t  is not necessary to presume in the law of Congress 
that the judge will commit a crime. W hy is it necessary to put it in 
your statute?

“ Mr. Clark: I desire to make but one suggestion in answer to the 
Senator from Wisconsin, and that is one of fact. He says if it were 
necessary that these judges should be proceeded against he would not



Argument 21

construed in its application to circumstances like those 
of the present case.* 22 It is defendants’ position (1) that 
an act is “ under color of authority”  of law if it is done 
in the exercise of freedoms protected by that law; (2) that 
Rev. Stat. § 1979, 42 U. S. C. § 1983 (1958), is a “ law pro­
viding for equal rights”  and protects, inter alia, acts in the 
exercise of First Amendment freedom of speech to protest 
racial discrimination; and (3) that defendants are being 
prosecuted for such protected acts.

object. I hold in my hand a communication from a member of the other 
House from Kentucky, in which he says that all the judicial districts of 
Kentucky, with the exception of one, are in the hands of sympathizing 
judges. They entirely disregard the act to which this is an amendment. 
They refuse to allow the transfer, and proceed against these men as if 
nothing had taken place. Here is not the assumption that these judges 
will not do this; here is the fact that they do not do it, and it is necessary 
that these men should be protected.” Id. at 2063 (4 /20 /66 ).
22. In Arkansas v. Howard, 218 F. Supp. 626 (E . D. Ark. 1963) removal 

was sought of prosecutions for assault with intent to kill and for carrying a 
knife, charges arising out a fight between defendant and a white student after 
rocks were thrown at the station wagon in which defendant was escorting home 
from school two Negro students (one, defendant’s niece) who had that day 
been enrolled in a previously segregated school under federal court order. De­
fendant invoked § 1443(2) on the theory that in escorting the children and 
protecting himself and them from persons who sought to frustrate enrollment, 
he was acting under color of authority derived from the Civil Rights A ct of 
1960, under which the enrollment order was made. The court assumed ar­
guendo that in some circumstances removal under §1443(2) was available to 
a private individual charged with an offense arising out of his escorting pupils 
to a school in process of desegregation under federal court order, but held 
that this defendant, in his knife fight with the white student, was nop imple­
menting the court’s integration order since that order made no provision for 
transporting or escorting the children to school, in light of the previously peace­
ful history of the school controversy, by virtue of which, prior to the day of 
enrollment, there was no reason to anticipate violence; hence there was no 
“proximate connection,”  218 F. Supp. at 634, between the court’s order and 
defendant’s fight.

In Hodgson v. Millward, 12 Fed. Cas. 28S, No. 6,568 (Grier, C.J., E. D. 
Pa. 1863), approved in Braun v. Sauerwein, 10 Wall. 218, 224 (1869), Justice 
Clifford held that a sufficient showing of “color of authority” was made to 
justify removal under the 1863 predecessor of 28 U. S. C, §1443(2) (1958) 
where it appeared that the defendants in a civil trespass action, the United 
States marshal and his deputies, seized the plaintiff’s property under a warrant 
issued by the federal district attorney, purportedly under authority of a Presi­
dential order, notwithstanding the order might have been invalid. For the 
facts of the case, see Hodgson v. Millward, 3 Grant (P a .) 412 (Strong, J. 
at nisi prius. 1863). This establishes that “ color of authority” may be found 
where a federal officer acts under an order which is illegal. See Potts v. 
Elliott, 61 F. Supp. 378, 379 (E . D. Ky. 1945) (court officer civil removal case) ; 
Logemann v. Stock, 81 F. Supp. 337, 339 (D . Neb. 1949) (federal officer civil 
removal case). But it does not advance inquiry as to whether “color of author­
ity” exists in any other than the evident case of a regular federal officer acting 
under express warrant of his office.



22 Argument

( 1 )  “ C O LO B  OB A xT TH O B ITY ” .

On its face, the authorization of removal by a de­
fendant prosecuted for any act “ under color of authority 
derived from ”  any law providing’ for equal civil rights 
might mean to reach (a) only federal officers enforcing the 
civil rights acts, (b) federal officers enforcing the civil 
rights acts and also private persons authorized by the 
officers to assist them in enforcing the acts, or (c) federal 
officers and persons enforcing or exercising rights under 
the civil rights acts. The legislative history and context 
support the third construction.

Prior to the enactment in 1948 of 28 U. S. C. § 1442-
(a)(1) (1958),23 there was no statutory provision gen­
erally authorizing removal of cases against federal officers. 
As indicated at pp. 14-15, supra, Congress during the 
nineteenth century enacted specific, narrow statutes allow­
ing removal by designated kinds of officers only. In 1815, 
it provided in a customs act for removal of suits or 
prosecutions “ against any collector, naval officer, sur­
veyor, inspector, or any other officer, civil or military, or 
any other person aiding or assisting, agreeable to the pro­
visions of this act, or under colour thereof, for anything 
done, or omitted to be done, as an officer of the customs, or 
for any thing done by virtue of this act or under colour 
thereof . . . ”  Act of February 4, 1815, ch. 31, § 8, 3 Stat. 
195, 198; also Act of March 3, 1815, ch. 93, § 6, 3 Stat. 231, 
233. In 1833, it enacted the Force Act of March 2, 1833, 
ch. 57, 4 Stat. 632, whose second section envisioned that

23. § 1442. Federal officers sued or prosecuted.
“ (a ) A  civil action or criminal prosecution commenced in a State 

court against any of the following persons may be removed by them to 
the district court of the United States for the district and division em­
bracing the place wherein it is pending:

“ (1)  Any officer of the United States or any agency thereof, or 
person acting under him, for any act under color of such office or on 
account of any right, title or authority claimed under any A ct of 
Congress for the apprehension or punishment of criminals or the 
collection of the revenue.



Argument 23

private individuals, as well as federal officers, might take 
or hold property pursuant to the revenue laws; and whose 
§3, 4 Stat. 633 allowed removal of any “ suit or prosecu­
tion . . . against any officer of the United States, or other 
person, for or on account of any act done under the rev­
enue laws of the United States, or under colour thereof, 
or for or on account of any right, authority, or title, set 
up or claimed by such officer, or other person under any 
such law of the United States. . . . ”  The 1833 act was 
applied to other revenue laws by the Act of March 7, 1864, 
ch. 20, § 9, 13 Stat. 14, 17, and the Act of June 30, 1864, 
ch. 173, § 50, 13 Stat. 223, 241. By the Act of July 13, 1866, 
ch. 184, 14 Stat. 98, Congress (a) generally amended the 
revenue provisions of the Act of June 30, 1864; (b) in § 67, 
14 Stat. 171, authorized removal of any civil or criminal 
action “ against any officer of the United States appointed 
under or acting by authority of [the Act of June 30, 1864, 
and amendments thereto] . . .  or against any person act­
ing under or by authority of any such officer on account of 
any act done under color of his office, or against any person 
holding property or estate by title derived from any such 
officer, concerning such property or estate, and affecting 
the validity of [the revenue laws] . . . and (c) in $ 68, 
14 Stat. 172, repealed the removal provisions (§50) of the 
Act of June 30, 1864, and provided for the remand to the 
state courts of all pending removed cases which were not 
removable under the new 1866 removable provisions.

In 1863, Congress enacted the first removal provision 
applicable to other than revenue-enforcement cases. The 
Act of March 3, 1863, ch. 81, 12 Stat. 755, was a Civil War 
measure. It undertook principally to authorize Presi­
dential suspension of the writ of habeas corpus, and to 
immunize from civil and criminal liability persons making 
searches, seizures, arrests and imprisonments under Presi­
dential orders during the existence of the rebellion. Sec­
tion 5, 12 Stat. 756, allowed removal of all suits or prosecu­
tions “ against any officer, civil or military, or against any



24 Argument

other person, for any arrest or imprisonment made, or 
other trespasses or wrongs done or committed, or any act 
omited to be done, at any time during the present rebel­
lion, by virtue or under color of any authority derived 
from or exercised by or under the President of the United 
States, or any act of Congress.”  This was the predecessor 
of the removal provisions of the Act of April 9, 1866, ch. 
31, § 3, 14 Stat. 27, the first civil rights act. Section 1 of 
the 1866 act provided:

“ Be it enacted by the Senate and House of Repre­
sentatives of the United States of America in Congress 
assembled, That all persons born in the United States 
and not subject to any foreign power, excluding 
Indians not taxed, are hereby declared to be citizens 
of the United States: and such citizens, of every race 
and color, without regard to any previous condition 
of slavery or involuntary servitude, except as a 
punishment for crime whereof the party shall have 
been duly convicted, shall have the right, in every 
State and Territory in the United States, to make and 
enforce contracts, to sue, be parties, and give evidence, 
to inherit, purchase, lease, sell, hold, and convey real 
and personal property, and to full and equal benefit 
of all laws and proceedings for the security of person 
and property, as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, and penalties, and 
to none other, any law, statute, ordinance, regulation, 
or custom, to the contrary notwithstanding. ”
Section 3 contained the removal provisions:

“ S ec . 3. And be it further enacted, That the dis­
trict courts of the United States, within their re­
spective districts, shall have, exclusively of the courts 
of the several States, cognizance of all crimes and 
offences committed against the provisions of this act, 
and also, concurrently with the circuit courts of the 
United States, of all causes, civil and criminal affect-



Argument 25

ing persons who are denied or cannot enforce in the 
courts or judicial tribunals of the State or locality 
where they may be any of the rights secured to them 
by the first section of this act; and if any suit or 
prosecution, civil or criminal, has been or shall be 
commenced in any State court, against any such per­
son, for any cause whatsoever, or against any officer, 
civil or military, or other person, for any arrest or im­
prisonment, trespasses, or wrongs done or committed 
by virtue or under color of authority derived from this 
act or the act establishing a Bureau for the relief of 
Freedmen and Refugees, and all acts amendatory 
thereof, or for refusing to do any act upon the ground 
that it would be inconsistent with this act, such defend­
ant shall have the right to remove such cause for trial 
to the proper district or circuit court in the manner 
prescribed by the ‘ Act relating to habeas corpus and 
regulating judicial proceedings in certain cases,’ ap­
proved March three, eighteen hundred and sixty-three 
and all acts amendatory thereof. . .

The 1866 statute was reenacted by reference in the 
second civil rights act (Enforcement Act of May 31, 1870, 
ch. 114, §§ 16-18, 16 Stat. 140, 144), and, as affected by the 
third civil rights act (Ku Klux Act of April 20, 1871, ch. 22, 
17 Stat. 13), infra, pp. 31-32, became Rev. Stat. § 641:

“ Sec. 641. When any civil suit or criminal prose­
cution is commenced in any State court, for any cause 
whatsoever, against any person who is denied or cannot 
enforce in the judicial tribunals of the State, or in the 
part of the State where such suit or prosecution is 
pending, any right secured to him by any law provid­
ing for the equal civil rights of citizens of the United 
States, or of all persons within the jurisdiction of the 
United States, or against any officer, civil or military, 
or other person, for any arrest or imprisonment or 
other trespasses or wrongs, made or committed by vir­



26 Argument

tue of or under color of authority derived from any law 
providing for equal rights as aforesaid, or for refusing 
to do any act on the ground that it would be incon­
sistent with such law, such suit or prosecution may, 
upon the petition of such defendant, filed in said State 
court, at any time before the trial or final hearing of 
the cause, stating the facts and verified by oath, be 
removed, for trial, into the next circuit court to be held 
in the district where it is pending. Upon the filing of 
such petition all further proceedings in the State courts 
shall cease, and shall not be resumed except as herein­
after provided. . . . ”

In 1911, in the course of abolishing the old circuit courts, 
Congress technically repealed Rev. Stat. § 641 (Judicial 
Code of 1911, § 297, 36 Stat. 1087, 1168) but carried its pro­
visions forward without change (except that removal juris­
diction was given the district courts in lieu of the circuit 
courts) as § 31 of the Judicial Code (Judicial Code of 1911, 
§ 31, 36 Stat. 1087, 1096). Section 31 verbatim became 28 
U. S. C. § 74 (1940), and in 1948, with changes in phrase­
ology,24 it assumed its present form as 28 U. S. C. § 1443 
(1958), supra, p. 12.

This history indicates that, of the three alternative con­
structions of § 1443(2) suggested at p. 22 supra, alterna­
tive (A ), reading “ color of authority”  as restricted to fed­
eral officers, is untenable. The 1866 Act in terms authorized 
removal by “ any officer . . .  or other person, for [enum­
erated wrongs] . . . by virtue or under color of authority 
derived from this act . . and the language “ officer 
. . . or . . . person”  was retained in the Revised Stat­
utes and the Judicial Code of 1911. Both “ officer”  and 
“ person”  were dropped in the 1948 revision, and, as the

24. Revisor’s Note to 28 U. S. C. § 1443 (1958) :

“ W ords ‘or in the part of the State where such suit or prosecution 
is pending’ after ‘courts of such States,’ [ « c ]  were omitted as unnecessary.

“ Changes were made in phraseology.”



Argument 27

Revisor’s Note indicates, no substantive change in the sec­
tion was intended. Clearly, §1443(2) reaches “ persons”  
other than “ officers.”

The history also requires rejection of alternative (B), 
which would restrict that class of “ persons”  to persons au­
thorized by federal officers to assist in the enforcement of 
the Civil Rights Acts. The strongest basis for such a re­
striction of removal is that the 1866 act designates as re­
movable any suit or prosecution of officers or persons “ for 
any arrest or imprisonment, trespasses, or wrongs done or 
committed by virtue or under color of authority derived 
from this act or the act establishing a Bureau for the relief 
of Freedmen and Refugees, and all acts amendatory thereof 
. . . ”  [emphasis added]. This language, which on its 
face might seem directed rather to actions arising from, law 
enforcement activity than to actions arising from exercise 
of the rights given by the law, is patterned on the identical 
phraseology of the 1863 habeas corpus act, where the au­
thorization of removal of actions against officers or persons 
“ for any arrest or imprisonment made, or other trespasses 
or wrongs done or committed, or any act omitted to be done, 
at any time during the present rebellion, by virtue or under 
color of any authority derived from or exercised by or 
under the President of the United States, or any act of 
Congress ’ ’ pretty clearly was addressed to actions arising 
from arrests, seizures and injuries inflicted by Union 
officers and persons acting under them. However, though 
the 1866 act adopts the basic framework of the act of 1863, 
it is evident that it adopts it for other and broader pur­
poses. Whereas the 1863 legislation was concerned prin­
cipally with protecting Union officers in their conduct of 
wartime activities, and gave no rights or immunities to pri­
vate individuals, the later statutes to the “ color of author­
ity”  of which the 1866 act refers—the 1866 Civil Rights Act 
itself, the Freedmen’s Bureau Act of March 3, 1865, eh. 90, 
13 Stat. 507, and the amendatory Freedmen’s Bureau Act 
of July 16, 1866, ch. 200, 14 Stat. 173 (which was debated



28 Argument

by the 1866 Congress as companion legislation to the 1866 
Civil Rights Act)—did grant to private individuals exten­
sive rights and immunities in the assertion of which it was 
foreseeable that “ trespasses or wrongs”  might be charged 
against them. Section 1 of the 1866 Civil Rights Act, 14 
Stat. 27, and § 14 of the amendatory Freedmen’s Bureau 
Act, 14 Stat. 176, for example, gave all citizens the right 
to acquire and hold real and personal property, and to full 
and equal benefit of all laws for the security of person and 
property. In the exercise of self-help to defend their prop­
erty or resist arrest under discriminatory state legislation, 
citizens asserting their federally-granted rights would 
doubtless commit acts for which they might be civilly or 
criminally charged in the state courts. By § 3 of the 1866 
act Congress meant to authorize removal in such cases, and 
not merely cases in which the freedmen acted under the 
authority of a federal officer. This appears clearly from 
the absence of any words of limitation in the allowance of 
removal of actions against any person for “ wrongs done or 
committed by virtue or under color of authority derived 
from ”  the various acts granting civil rights. When Con­
gress wanted in removal statutes to limit “ persons”  acting 
“ under color o f ”  law or authority to persons assisting or 
authorized by a federal officer, Congress several times 
stated this limitation expressly. It did so in the revenue act 
of 1815 and again in the revenue act of 1866, by which the 
same Congress which passed the Civil Rights Act of 1866 
limited the broader removal provisions of the 1833 and 1864 
revenue acts. See pp. 22-23, supra. Comparison of the 
revenue-act removal provisions with those of the Civil 
Rights Acts strongly supports the conclusion that the latter 
are not limited to persons acting under the directions of a 
federal enforcement officer.

Indeed, this interpretation is the only plausible one 
under the pattern of removal jurisdiction presently in force 
by virtue of the 1948 Judicial Code. Section 1442(a)(1) 
(1958), supra note 23, authorizes removal of suits or prose­



Argument 29

cutions against any federal officer or person acting under 
him for any act under color of his office, whether in civil 
rights cases or otherwise. If the separate removal provi­
sion of § 1443(2) “ For any act under color of authority de­
rived from any law providing for equal rights”  is not en­
tirely redundant, it must reach cases of action by private 
individuals not ‘ ‘ acting under”  a federal officer in the asser­
tion of their civil rights. Since private individuals acting 
as such derive authority from federal law only by exercis­
ing privileges asserted under it, defendants submit it is 
inescapable that § 1443(2) authorizes removal by any per­
son exercising liberties in which he is protected by “ any 
law providing for equal rights.”

( 2 )  “ L a w  P r o v id in g  f o r  E q u a l  R i g h t s ” .

It is clear that “ any law providing for equal rights”  
in 28 U. 8. C. § 1443(2) (1958) means the same thing as the 
lengthier language of 28 U. 8. C. § 1443(1) (1958): “ any 
law providing for the equal civil rights of citizens of the 
United States, or of all persons within the jurisdiction 
thereof. ’ ’ 25 Cases may be found holding that the only right 
protected by this latter language is the right of equal pro­

25. As originally enacted by § 3 of the 1866 Civil Rights Act, the provision 
authorized removal by any person who could not enforce in the state courts 
“any of the rights secured to them by the first section of this act” and also 
by officers or persons for wrongs done under color of authority “derived from 
this act or the act establishing a Bureau for the relief o f Freedmen and Refugees, 
and all acts amendatory thereof.”  See §§ 1 and 3 of the Act, supra pp. 24-25. 
Sections 16 to 18 of the Act of May 31, 1870, ch. 114, 16 Stat. 140, 144, slightly 
extended the civil rights protected by § 1 of the 1866 A ct and provided that 
the rights thus created should be enforced according to the provisions of the 
1866 Act. In the Revised Statutes, § 641, the removal provision extended to 
any person who could not enforce in the state courts “any right secured to him 
by any law providing for the equal civil rights of citizens of the United States, 
or of all persons within the jurisdiction of the United States,” and to officers 
or persons charged with wrongs done under color of authority “derived from 
any law providing for equal rights as aforesaid.” These two removal authori­
zations (now respectively subsections (1 ) and (2 ) of § 1443) appeared in the 
1911 Judicial Code, §31, 36 Stat. 1087, 1096, exactly as they had appeared in 
the Revised Statutes, with the “color of authority” passage referring explicitly 
back to the “as aforesaid” laws described in the “ cannot enforce” passage. 
Omission of “as aforesaid” in the 1948 revision effected no substantive change, 
for as indicated by the Revisor’s Note, supra note 23, the 1948 revision intended 
only “ Changes . . .  in phraseology.”



30 Argument

tection of the laws.26 Even under such a restrictive view, 
the removal petitions filed by defendants below adequately 
state a case for removal, for they allege both (a) that the 
prosecution of defendants has the purpose and effect of 
unequally depriving them of their right of free expression 
—that is, of discriminatorily denying them their rights to 
speak, assemble and protest grievances,27 and (b) that their 
prosecution has the purpose and effect of suppressing their 
exercise of free speech to protest unconstitutional racial 
discrimination and inequality in the Chester schools.28 See 
p. 7, supra. In any event, the pertinent statutes are per­
suasive that the statement of an equal protection claim is 
not a requisite to invoking § 1443, and that free speech and 
other due process claims are rights “ under any law pro­
viding for the equal civil rights of citizens of the United 
States, or of all persons within the jurisdiction thereof”  
(§ 1443 (1)), and rights ‘ ‘ derived from any law providing 
for equal rights”  (§ 1443(2)). Rev. Stat. § 1979, 42 U. S. C. 
§ 1983 (1958) provides that “ Every person who, under 
color of any statute, ordinance, regulation, custom, or usage, 
of any State or Territory, subjects, or causes to be sub­
jected, any citizen of the United States or other person 
within the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Constitu­
tion and laws, shall be liable to the party injured in an action 
at law, suit in equity, or other proper proceeding for re­
dress.”  This provision, which protects due process rights,29

26. Steele v. Superior Court, 164 F. 2d 781 (9th Cir. 1948) (alternative 
ground), cert, denied, 333 TJ. S. 861 (1948); Hill v. Pennsylvania, 183 F. 
Supp. 126 (W . D. Pa. 1960).

27. Supporting such a substantive claim, see Niemotko v. Maryland, 340 
U. S. 268, 272 (1951) (adverting to “ The right to equal protection of the laws, 
in the exercise of those freedoms of speech and religion protected by the First 
and Fourteenth Amendments . . . ” ) ; cf. Hague v. C. I. O., 307 U. S. 496 
(1939) ; Fowler v. Rhode Island, 345 U. S. 67 (1953).

28. Supporting such a substantive claim, see N. A . A . C. P. v. Button, 
371 U. S. 415, 428-431 (1963); N. A . A . C. P. v. Alabama ex  rel. Flowers 
377 U. S. 288, 307-309 (1964).

29. M onroe v. Pape, 365 U. S. 167 (1961).



Argument 31

including the right of free speech,80 derives from § 1 of the 
Ku Klux Act of April 20, 1871, ch. 22, 17 Stat. 13, the third 
civil rights act—clearly, in its history and purposes, a “ law 
providing for . . . equal civil rights.” 30 31 This, as a matter 
of plain language, brings a civil rights demonstrator’s free 
speech claim, bottomed on the First and Fourteenth Amend­
ments and 42 U. S. C. §1983 (1958) and unadorned with 
ancillary equal protection claims, within the removal pro­
visions of 28 IT. S. C. § 1443(2) (1958).

Closer inspection of the original statutes is conclusive. 
The rights originally protected by the removal provisions 
of § 3 of the Act of 1866, reenacted by § 18 of the Act of 
1870, were only those given by § 1 of the 1866 act, the 
Freedmen’s Bureau Act with its amendments, and 
§§ 16 and 17 of the 1870 act. See note 25 supra. The 
language ‘ ‘ any law providing for . . . equal civil rights ’ ’ 
first appears in § 641 of the Revised Statutes, and 
the question is whether that language is meant to include 
only the rights to equality assured by the first and second 
civil rights acts of 1866 and 1870 or to include also the 
rights protected by the third civil rights act of 1871. Sec­
tion 1 of the 1871 act (now 42 IT. S. C. §1983 (1958)), in 
its original form, provided:

“ Be it enacted toy the Senate and House of Rep­
resentatives of the United States of America in Con­
gress assembled, That any person who, under color of 
any law, statute, ordinance, regulation, custom or usage 
of any State, shall subject, or cause to be subjected, any 
person within the jurisdiction of the United States to 
the deprivation of any rights, privileges, or immunities 
secured by the Constitution of the United States, shall,

30. Egan v. Aurora, 36S U. S. 514 (1961) ; Douglas v. Jeannette, 319 U. S. 
157, 161-162 (1943) (relief denied on other grounds) ; Hague v. C. I. O., 307 
U. S. 496, 518, 527 (1939) (opinion of Justice Stone).

31. The quoted words are those of 28 U. S. C. §1443(1) (1958). The 
history of the 1871 act is extensively discussed in the opinions in M onroe v. 
Pape, supra, note 29.



32 Argument

any such law, statute, ordinance, regulation, custom or 
usage of the State to the contrary notwithstanding, be 
liable to the party injured in any action at law, suit in 
equity, or other proper proceeding for redress; such 
proceeding to be prosecuted in the several district or 
circuit courts of the United States, with and subject to 
the same rights of appeal, review upon error, and other 
remedies provided in like cases in such courts, under 
the provisions of the act of the ninth of April, eighteen 
hundred and sixty-six, entitled ‘An act to protect all 
persons in the United States in their civil rights, and 
to furnish the means of their vindication’ ; and the 
other remedial laws of the United States which are in 
their nature applicable in such cases.”

The statutory reference is to the Civil Eights Act of 1866; 
the sweeping language “ other remedies provided in like 
eases in [the federal] . . . courts, under the provisions of 
the [1866 A ct]”  is broad enough to include the 1866 A ct’s 
removal provisions; and the still more sweeping reference 
to “ the other remedial laws of the United States which are 
in their nature applicable in such cases”  is effective to in­
voke the removal provisions of the 1863 statute, upon which 
those of 1866 were also based. Thus, the 1871 Act in terms 
extended that class of rights in service of which removal 
was available, and it was plainly and properly on this as­
sumption that the 1873 revision proceeded.

(3 ) T he  A cts foe W h ic h  D efendants A re P rosecuted.

Under the construction of 28 U. S. C. $ 1443(2) (1958) 
advanced in the preceding paragraphs, state criminal de­
fendants prosecuted for acts in the exercise of First Amend­
ment freedoms may remove their prosecutions to the federal 
courts. That defendants’ petitions bring them within the 
statute so construed is evident. The petitions allege and the 
attached state court records show that defendants are being



Argument 33

prosecuted for refusing to leave public premises to which 
they had come to protest racial discrimination, and inequal­
ity. After Edwards v. South Carolina, 372 U. S. 229 (1963), 
it would be a work of supererogation to argue that such con­
duct is within the scope of constitutionally protected free­
doms of speech, assembly and petition.32 Of course, in order 
to establish the jurisdiction of the federal court on removal, 
a defendant need not make out his federal constitutional 
defense on the merits and conclusively show that his con­
duct was protected by the federal law on which he relies. 
That defense is the very matter to be tried in the federal 
district court after removal is effected. To support federal 
jurisdiction it is sufficient that the acts charged against the 
defendant are acts “ under color of authority derived from ”  
federal civil rights law. 28 U. S. C. § 1443(2) (1958) (em­
phasis added). This has been clear since the earliest ap­
plication of the criminal removal statutes in Tennessee v. 
Davis, 100 U. S. 257, 261-262 (1879) (federal officer case); 
see also cases cited in note 22 supra. It would be impossi­
ble to contend, following Edwards, that a “ sit-in”  in a mu­
nicipal building is not colorable First Amendment activity.

Hence, defendants submit their cases are removable 
under § 1443(2).

(G) Defendants’ Removal Petitions Also State a Removable
Case Under 28 U. S. 0. § 1443(1) by Reason of Uncon-
stitutionality of the Underlying Criminal Charges.
Subsection (1) of 28 IT. S. C. § 1443 allows removal of 

any criminal prosecution in which a defendant “ is denied 
or cannot enforce in the courts of [the] . . .State a right 
under any law providing for the equal civil rights of citi­

32. The companion cases now held in the District Court to await the out­
come of these appeals, see pp, 2-5, supra, involve civil rights demonstrations 
of two sorts: (A )  those which may be characterized as “sit-ins” in public 
buildings, and (B ) street demonstrations. Both are within the ambit of 
Edwards and subsequent Supreme Court decisions. Fields v. South Carolina 
375 U. S. 44 (1963) (per curiam) ; Henry v. Rock Hill, 376 U. S. 776 (1964) 
(per curiam).



34 Argument

zens . . .  or of all persons. . . . ”  Unlike subsection (2), 
discussed in part (B) of this brief, subsection (1) has sev­
eral times been before the Supreme Court of the United 
States. Strauder v. West Virginia, 100 U. S. 303 (1879); 
Virginia v. Rives, 100 U. S. 313 (1879); Neal v. Delaware, 
103 U. S. 370 (1880); Bush v. Kentucky, 107 U. S. 110 
(1882); Gibson v. Mississippi, 162 U. S. 565 (1896); Smith 
v. Mississippi, 162 U. S. 592 (1896); Murray v. Louisiana, 
163 U. S. 101 (1896); Williams v. Mississippi, 170 U. S. 213 
(1898); Kentucky v. Powers, 201 U. S. 1 (1906). All of 
these cases involved the claim that state criminal defendants 
held for trial on murder charges were denied federal rights 
under the equal protection clause of the Fourteenth Amend­
ment by reason of systematic discrimination in the selection 
of grand and petit juries.33 In Strauder, where a Negro 
defendant seeking removal could point to an extant statute, 
of force in the State where he was held for trial, expressly 
restricting eligibility for jury service to whites, removal 
was upheld. In the other cases, from Rives to Powers, the 
Court found that the state legislation controlling jury selec­
tion was non-discriminatory and even-handed, and that what 
the defendants complained of was a systematic discrimina­
tory exclusion of jurors practiced by jury-selection officials 
without sanction of state constitutional or statutory law. In 
these cases removal was disallowed for the following rea­
sons, stated in Rives, 100 U. S. at 321-322:

“ Now, conceding as we do, and as we endeavored 
to maintain in the case of Strauder v. West Virginia 
(supra, p. 303), that discrimination by law against the 
colored race, because of their color, in the selection of 
jurors, is a denial of the equal protection of the laws to 
a negro when he is put upon trial for an alleged crim­
inal offense against a State, the laws of Virginia make

33. The discrimination complained of in Powers was along political party 
lines; in all the other cases it was racial. In none of the cases save Powers 
was any other claim_ than jury discrimination relied on for removal, and in 
Powers the only additional claim put forward— state court refusal to honor a 
state-granted pardon—presented no non-frivolous issue of denial o f a federal 
right.



Argument 35

no such, discrimination. If, as was alleged in the argu­
ment, though it does not appear in the petition or 
record, the officer to whom was intrusted the selection 
of the persons from whom the juries for the indictment 
and trial of the petitioners were drawn, disregarding 
the statute of the State, confined his selection to white 
persons, and refused to select any persons of the 
colored race, solely because of their color, his action 
was a gross violation of the spirit of the State’s laws 
as well as of the act of Congress of March 1,1875, which 
prohibits and punishes such discrimination. He made 
himself liable to punishment at the instance of the State 
and under the laws of the United States. In one sense, 
indeed, his act was the act of the State, and was pro­
hibited by the constitutional amendment. But inas­
much as it was a criminal misuse of the State law, it 
cannot be said to have been such a “ denial or disability 
to enforce in the judicial tribunals of the State”  the 
rights of colored men, as is contemplated by the re­
moval act. Sect. 641. It is to be observed that act
gives the right of removal only to a person “ who is 
denied, or cannot enforce, in the judicial tribunals of 
the State Ms equal civil rights.”  And this is to appear 
before trial. When a statute of the State denies his
right, or interposes a bar to his enforcing it, in the
judicial tribunals, the presumption is fair that they will 
be controlled by it in their decisions; and in such a case 
a defendant may affirm on oath what is necessary for a 
removal. Such a case is clearly within the provisions 
of sect. 641. But when a subordinate officer of the 
State, in violation of State law, undertakes to deprive 
an accused party of a right which the statute law 
accords to him, as in the case at bar, it can hardly be 
said that he is denied, or cannot enforce, ‘ in the judicial 
tribunals of the State’ the rights which belong to him. 
In such a case it ought to be presumed the court will 
redress the wrong. . . . ”



Argument

Under these decisions, the least to which the present 
defendants are plainly entitled is removal of the prosecu­
tions insofar as based upon state statutes or local ordi­
nances which—like the Strauder statute—are on their faces 
unconstitutional under federal law “ providing for . . . 
equal civil rights.” 34 The meaning of this latter phrase 
in 28 U. S. C. § 1443(1) (1958) is discussed at pp. 29-32 
swpra, and defendants’ position is there documented that 
the language includes First and Fourteenth Amendment 
rights. Under the First-Fourteenth Amendment doctrines 
of vagueness and overbreadth developed in Herndon v. 
Lowry, 301 U. S. 242 (1937); Thornhill v. Alabama, 310 
U. S. 88 (1940); N. A. A. C. P. v. Button, 371 U. S. 415 
(1963); cf. Lametta v. New Jersey, 306 U. S. 451 (1939), 
the provisions of Pennsylvania’s general conspiracy stat­
ute, Purdon’s Pa. Stat. Ann., 1963, tit. 18, §4302, note 6 
supra (punishing conspiracy to do any “ dishonest, mali­
cious or unlawful act to the prejudice of another” ), and of 
Ordinance No. 61 of 1962 of the City of Chester, App. 13a 
(punishing for disorderly conduct anyone who “ shall loaf 
or loiter or congregate upon any of the public streets or 
alleys or public grounds in the City of Chester to the 
danger, discomfort, or annoyance of peaceable residents 
nearby or traveling upon any street or alley or being upon 
any of the public grounds in the City whereby the public 
peace is broken or disturbed or the traveling public an­
noyed” ) are bad on their faces. Cf., as to the conspiracy 
statute, State v. Musser, 118 Ut. 537, 223 P. 2d 193 (1950), 
voiding on remand the statute whose unconstitutionality 
is suggested in Musser v. Utah, 333 U. S. 95 (1948) ; and, 
as to the disorderly ordinance, see Thornhill, supra, and 
Terminiello v. Chicago, 337 U. S. 1 (1949), striking down 
a breach of the peace conviction following a jury charge in 
language which parallels that of the Chester ordinance. 
Prosecutions under these provisions being consolidated

34. Contra: North Carolina v. Jackson, 13S F. Supp. 682 (M . D. N. C. 
19SS). Defendants do not believe Jackson can be reconciled with Strauder. 
Cf. Snypp v. Ohio, 70 F. 2d 535 ( 6th Cir. 1934) (alternative ground), in which 
the federal constitutional claim was frivolous.



Argument 37

with other prosecutions for trial in the state courts, the 
entire proceedings were properly removed to the District 
Court.

Further, under the rationale of the Supreme Court’s 
decisions, all of the charges against the defendants are 
severally removable by reason of the showing in the re­
moval petitions that even those charges which are not 
unconstitutional on their faces are unconstitutional if ap­
plied to make defendants’ federally protected conduct 
criminal. The hallmark of removability, as the Supreme 
Court has read §1443(1), is whether state statutory law 
dictates the federally unconstitutional result complained 
of in the removal petition, or whether, on the other hand, 
that unconstitutional result is the product of state judicial 
action unconstrained by state statute. Under this test, 
whenever one who is prosecuted in a state court makes a 
substantial showing that the substantive statute which he 
is charged with violating is unconstitutional in its applica­
tion to him, denying him his federal civil rights, his case 
is eo ipso removable, notwithstanding he cannot point to 
any other, procedural provision of state statutory law 
which impedes the enforcement of those rights in the state 
courts. And for these purposes, it matters not whether 
the state statute in question is unconstitutional on its face 
(i.e., in all applications) or unconstitutional as applied (i.e., 
insofar as it condemns particular defendants’ federally pro­
tected conduct), for in both cases equally it is the statute 
which directs the state courts to the constitutionally im­
permissible result and thus brings it about that the defend­
ant “ cannot enforce in the courts of [the] . . . State”  
his federal civil rights. It is significant that the whole line 
of Supreme Court decisions from Rives to Powers involved 
claims of denial of federal rights by reason of an uncon­
stitutional trial procedure, specifically: discrimination in 
the selection of jurors. In none of these cases did the de­
fendant claim that the substantive criminal statute on which 
the prosecution was based was invalid (either on its face or 
as applied to his conduct) by reason of federal limitations



38 Argument

on the kind of conduct which a State may punish. Such a 
claim asserts that, because of the First and Fourteenth 
Amendments, no matter what procedure is forthcoming at 
trial, the State cannot constitutionally apply the statute 
invoked to the conduct with which defendant is charged. 
Neal v. Delaware, 103 IT. S. 370, 386 (1880), and subse­
quent cases, e.g., Gibson v. Mississippi, 162 IT. S. 565, 581 
(1896), explain the Rives-Powers line as a holding that 
“ since [the removal] . . . section only authorized a re­
moval before trial, it did not embrace a case in which a 
right is denied by judicial action during the trial . . . ”  
But a defendant who attacks the underlying criminal stat­
ute as unconstitutional does not predicate his attack on 
“ judicial action during the trial.”  He says that if he is 
convicted at all under the statute his conviction will be 
illegal. Nothing about his contention is contingent upon 
the nature of “ judicial action, after the trial commenced.”  
Neal v. Delaware, supra, 103 IT. S. at 387.35 “ When a stat­
ute of the State denies his right, or interposes a bar to 
enforcing it, in the judicial tribunals, the presumption is 
fair that they will be controlled by it in their decisions; 
and in such a case a defendant may affirm on oath what is 
necessary for a removal. Such a case is clearly within the 
provisions of sect. 641 [present 28 IT. S. C. §1443(1)].”  
Virginia v. Rives, 100 IT. S. 313, 321 (1879). So the Fifth 
Circuit, in a recent order, has held. Addie Sue Brown 
et al. v. City of Meridian, 5th Cir., No. 21730, unreported 
order filed July 23, 1964,36 Defendants ask this Court to 
follow that Circuit in sustaining the removal here.

35. Except, of course that the state court may hold the statute unconsti­
tutional and enforce the defendant’s federal claims. But it is always possible 
to say that a state court may do this, and if the possibility blocks removal, the 
removal statute is entirely read off the books. This would require repudiation 
of Strauder v. W est Virginia, 100 U. S. 303 (1879), supra, and rejection of the 
assumption on which the Rives-Powers line of cases was decided: that if an 
unconstitutional state statute were found, removal would be proper.

36. In the Brown case, prosecutions of eight civil rights workers for dis­
turbance of the peace (one being charged also with disorderly conduct) and of 
a ninth civil rights worker for distributing advertising matter without a license 
were sought to be removed to the United States District Court for the Southern 
District of Mississippi. Inter alia, petitioners invoked the First and Fourteenth



Argument 39

(D) Defendants’ Removal Petitions Further State a Re­
movable Case Under 28 U. S. C. § 1443(1) Because the 
Very Pendency of These Prosecutions in the State 
Courts Is Calculated to Suppress Their First Amend­
ment Rights.

In no case yet decided in a written opinion by the 
Supreme Court or a federal Court of Appeals under 28 
U. S. C. § 1443(1) (1958) 37 were rights under the First and 
Fourteenth Amendments relied on by the removal peti­
tioners or tenably involved in the facts of the cases. The 
Supreme Court has consistently said that these rights 
occupy a constitutionally “ preferred position.” 38 It has 
recognized that “ The threat of sanctions may deter their 
exercise almost as potently as the actual application of

Amendments to challenge the charges on their faces and as applied. Only the 
distributing charge was susceptible of attack on its face. The District Court 
remanded the prosecutions on alternative grounds of untimeliness (an issue 
not Presented in the cases at bar) and non-removability under 28 U. S. C. 
S 1443(1), (2 ) (1958). Appeal was taken and, on application for a stay of 
the remand order, a panel of the Fifth Circuit (Chief Judge Tuttle and Circuit 
Judges Brown and Bell) entered the following order:

“ By The Court:
“ This petition of appellants for a stay of an order for remand of their 

cases to the state court is granted.
“ The petition for removal in these cases was based in part on alleged 

unconstitutionality of certain city ordinances and thus would warrant the 
District Court’s retaining jurisdiction under 28 U. S. C. § 1443.

“ The notice of appeal having been duly filed, the execution of the 
remand order of July 14, 1964, is hereby stayed until the further order of 
this Court.”
37. The “written opinion”  qualification is necessary to except the Brown 

order, supra note 36, and Georgia v. Tuttle, infra note 44. In Baines v. Dan­
ville, infra note 44, the Fourth Circuit did not reach any question of remov­
ability. In candor to this Court, defendants wish to bring to its attention the 
decision in Birmingham v. Croskey, 217 F. Supp. 947 (N . D. Ala. 1963), remand­
ing cases which would appear to be removable under the theories put forward 
in this brief, and which probably involved First-Fourteenth Amendment claims 
(although the opinion does not so indicate). Croskey is obviously inconsistent 
with the Fifth Circuit’s subsequent Brown order. N o other decision of any 
court appears pertinent, save for several remand orders, entered without opinion 
by federal District Courts in the South, a number of which are presently stayed 
by the Court of Appeals for the Fifth Circuit pending appeal to that court.

_ 38. Marsh v. Alabama, 326 U. S. 501, 509 (1946), and opinions cited; 
Prince v. Massachusetts, 321 U. S. 158, 164 (1944) ; Saia v. N ew  York 334 
U. S. 558, 562 (1948) ; cf. N ew  York Times Co. v. Sullivan, 376 U. S 254 
269-270 (1964).



40 Argument

sanctions. ’ ’ 39 Where a state defendant petitioning for 
removal can allege and show the federal court that the 
prosecution against him is maintained with the purpose 
and effect of harassing him, punishing him for his past 
exercise of, and deterring him and others similarly situated 
from exercising in the future, these First-Fourteenth 
Amendment rights, a particularly strong case for immedi­
ate federal court intervention is made.40 Removal, which 
brings before the federal courts at an early stage the very 
litigation which defendant claims is an instrument for 
infringing his rights of free expression, allows the timely 
vindication of those rights, which would otherwise be 
prejudiced during “ an undue length of time” 41 while the 
defendant was attempting to assert his rights in un­
sympathetic state trial and appellate courts. In cases 
involving free speech, unlike cases of the Rives-Powers 
type, the very pendency of the prosecution in the state 
courts denies defendant his civil rights, and disables him 
from enforcing them, within the meaning of 28 U. S. C. 
§ 1443(1) (1958).

Moreover, the essential purpose of removal jurisdic­
tion—to provide the removing party with a federal trial 
court in which he can receive a sympathetic hearing on the

39. N. A . A . C. P. v. Button, 371 U. S. 415, 433 (1963) (voiding, on review 
of a state-court declaratory judgment action, a state statute whose vagueness 
and overbreadth the Court found likely to deter the exercise of First Amend­
ment freedoms). _ See also Smith v. California, 361 U. S. 147 (1959), at 151 
(voiding, on review of a state conviction, an ordinance punishing possession 
of obscene books for sale, on the ground that the absence of any scienter 
requirement in the ordinance unduly deterred booksellers from stocking any 
book they had not read) ; Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963), 
at 66-70 (voiding, on review of a state-court declaratory judgment and injunc- 
tion action, the practice of a state obscenity commission which distributed to 
booksellers lists of objectionable publications with a warning that chiefs of 
police had been given the names of the listed publications and that the Attorney 
General “will act for us in case of non-compliance,” on the ground that this 
threat of prosecution unduly deterred distribution of literature) ; Cramp v. 
Board of Public Instruction, 368 U. S. 278 (1961), at 286-288 (voiding, on 
review of a state court declaratory judgment and injunction action, a state 
statute requiring a vague and overbroad loyalty oath of state employees).

40. See Baggett v. Bullitt, 377 U. S. 360 (1964), note 41, infra.
41. Baggett v. Bullitt, 377 U. S. 360, 379 (1964). The case is an action 

brought in a statutory three-judge federal district court for a declaratory judg­
ment of the unconstitutionality of Washington state statutes requiring a loyalty



Argument 41

issues of fact underlying his federal claim (see pp. 15- 
19, supra)—has particular application to cases involv­
ing First Amendment defenses. The scope of First 
Amendment protection turns largely on questions of fact, 
and the power of the trier of fact to find the facts adversely 
to defendant is the power effectively to deprive him of 
his First Amendment freedoms. See, e.g., Feiner v. New 
York, 340 U. S. 315, 319, 321 (1951). In this dimension, 
the major danger to federally protected conduct is not 
the existence of state constitutional or statutory law which 
on its face denies federal constitutional rights, but the 
risk of biased fact findings when one who is charged with 
crime for the exercise of colorable First Amendment free­
doms is required to try the facts in state courts which, as 
the removal legislation supposes, are likely to be less 
sympathetic to protect federal freedoms than the federal 
judiciary. Recent Supreme Court development of its 
void-for-vagueness doctrine has recognized that a cardinal 
constitutional objection to vague or overbroad state legis­
lation operating in the First- Amendment area is the sus­
oath of state employees, and for an injunction against its enforcement. The 
District Court denied relief and the Supreme Court reversed, holding that by 
reason of its vagueness the statute improperly overreached and deterred First 
Amendment freedoms. The Court rejected the State's contention that, under 
the abstention doctrine, the federal courts should postpone consideration of the 
statutes’ constitutionality until the state courts had had opportunity to construe 
the statutes and test their constitutionality. It said that however the state courts 
would construe the statutes, the statutes would apply to the plaintiffs as state 
employees; so that whatever the outcome of state litigation, the statutes would 
affect the plaintiffs. (This is also true, o f course, in criminal proceedings sought 
to be removed from a state court: whatever the outcome of the prosecution, 
the defendants have had to undergo state-court trial.)

“ W e also cannot ignore that abstention operates to require piecemeal 
adjudication in many courts . . . , thereby delaying ultimate adjudication 
on the merits for a undue length of time . . . , a result quite costly where 
the vagueness of a state statute may inhibit the exercise of First Amend­
ment freedoms. Indeed the 19SS subversive person oath has been under 
continuous constitutional attack at least since 1957 . . . and is now before 
this Court for the third time. Remitting these litigants to the state courts 
for a construction of the 1931 oath would further protract these proceedings, 
already pending for almost two years, with only the likelihood that the 
case, perhaps years later, will return to the three-judge District Court 
and perhaps this Court for a decision on the identical issues herein 
decided. . . . Meanwhile, where the vagueness of the statute deters con­
stitutionally protected conduct, ‘the free dissemination of ideas may be the 
loser.’ Smith v. California, 361 U. S. 147. . . . ”  Id. at 378-379.



42 Argument

ceptibility of its improper application by a trier of fact, 
impervious against federal appellate review.42 The same 
danger exists, in slightly lesser degree, in any case in 
which the litigation of facts underlying First Amendment 
defenses is committed to the state courts. Historically, 
Congress has used the device of federal removal precisely 
to insulate litigants having preferred claims to federal 
protection from the risk of hostile state court fact finding. 
See pp. 12-21, supra. And, in First Amendment cases, this 
risk of hostile fact finding not only works to impede 
vindication of federal rights of the defendants who actually 
go to trial in the state courts; the knowledge that effective 
enforcement of these rights is committed to the largely 
unreviewable power of state magistrates and judges tends 
broadly to deter their exercise by those defendants and 
others similarly situated in the service of unpopular causes. 
In any realistic sense, defendants’ liability to trial in 
state courts for First Amendment conduct in itself denies 
them, and makes them unable to enforce, their federal civil 
rights within the meaning of 28 U. S. C. § 1443(1) (1958).

(E) This Court Has Jurisdiction to Review the Remand
Order.

The present cases were removed from the state courts 
by petitions filed June 26, 1964, relying on 28 IT. S. C. 
§ 1443 (1958). They were remanded on July 6, 1964, and

42 Striking down Virginia barratry statutes on the ground that their over- 
breadth threatened First Amendment guarantees, the Court in N. A . A . C. P. 
v. Button, 371 U.S. 415, 432-433 (1963), wrote: “The objectionable quality 
of vagueness and overbreadth does not depend upon absence of fair notice to 
a criminally accused or upon unchanneled delegation of legislative powers, but 
upon the danger of tolerating, in the area of First Amendment freedoms’ the 
existence of a penal statute susceptible of sweeping and improper application.14” 
Footnote 14 cites: “Amsterdam, Note, The Void-for-Vagueness Doctrine in 
the Supreme Court, 109 U. of Pa. L. Rev. 67, 75-76, 80-81, 96-104 (I960).” 
The cited Note, 109 U. of Pa. L. Rev. at 80, points out: “ . , . Federal review 
of the functioning of state judges and juries in the administration of criminal 
and regulatory legislation is seriously obstructed by statutory unclarity. Preju­
diced, discriminatory, or overreaching exercises of state authority may remain 
concealed beneath findings of fact impossible for the Court to redetermine 
when such sweeping statutes have been applied to the complex, contested fact 
constellations of particular cases.”



Argument 43

notices of appeal were filed July 7, 1964. Prior to July 2, 
1964, 28 IT. S. C. § 1447(d) (1958) read: “ An order re­
manding a case to the State court from which it was re­
moved is not reviewable on appeal or otherwise.”  On July 
2, 1964, Congress enacted Public Law 88-352, the Civil 
Eights Act of 1964, 78 Stat. 241, which provides in § 901, 
78 Stat. 266:

“ S e c . 901. Title 28 of the United States Code, sec­
tion 1447(d), is amended to read as follows:

“  ‘An order remanding a case to the State court 
from which is was removed is not reviewable on ap­
peal or otherwise, except that an order remanding a 
case to the State court from which it was removed 
pursuant to section 1443 of this title shall be review- 
able by appeal or otherwise.’ ”
The applicability of the new statute to the present 

cases, pending in the District Court at the time of its 
enactment but neither remanded nor appealed until after 
the statute took effect, is plain, see Schoen v. Mountain 
Producers Corp., 170 P. 2d 707 (3d Cir. 1948) (statute 
authorizing transfer of venue applied to pending case to 
avoid forum non conveniens dismissal),43 and the remand 
orders are therefore 44 plainly reviewable. The only ques­
tion is the form in which review by this Court may be had

43. The statutory language and legislative history of the 1964 act are 
inconclusive on the question of its application to cases pending on its effective 
date, July 2, 1964, and ordinarily unless a contrary legislative purpose affirma­
tively appears, statutes governing procedural matters— including the jurisdiction 
of particular courts, e.g., Bruner v. United States, 343 U. S. 112 (1952), and 
cases cited—are applied to cases pending at the time of their passage. E x  parte 
Collett, 337 U. S. 55 (1949) ; Orr v. United States, 174 F. 2d 577 (2d Cir. 
1949) ; Bowles v. Strickland, 151 F. 2d 419 (5th Cir. 1945). The 1875 statute 
making remand orders in civil removal cases reviewable by appeal or writ of 
error was applied in Hoadley v. San Francisco, 94 U. S. 4 (1876), to authorize 
Supreme Court review of a remand in a case pending in the state courts at 
the time of the act and thereafter removed and remanded. Since it is incon­
ceivable that the date of removal should affect the application of a statute 
governing appellate jurisdiction, Hoadley is directly controlling here.

44. Even before enactment of the 1964 statute, this Court had jurisdiction 
to review the District Court’s remand order. The argument in support of 
this proposition consumes more than 30 pages of the prevailing Brief for 
Respondents Rachel et al. in Opposition, filed in O. T. 1963, No. 1361 Misc., 
Georgia v. Tuttle, 84 S. Ct. 1940 (1964). The proceedings in Georgia v.



44 Argument

The question is raised by the Supreme Court ’s holding 
in Railroad Co. v. Wiswall, 23 Wall. 507 (1874), that an 
order of a federal trial court remanding a civil case to the 
state court from which it was removed was a non-final 
order not reviewable by writ of error, but only by man­
damus. If Wiswall is still controlling law, the remand 
orders of the District Court in the present cases are not 
final decisions appealable to this Court under 28 U. S. C. 
§ 1291 (1958). Defendants take the view that Wiswall no 
longer controls, for two reasons. (1) Section 901 of the 
Civil Rights Act of 1964 explicitly makes the remand orders 
in these cases “ reviewable by appeal or otherwise.”  This 
alone is a sufficient jurisdictional grant. (2) Conceptions 
of “ finality”  have broadened considerably since 1874, and 
within these new conceptions a remand order is appealable 
pursuant to 28 U. S. C. § 1291 (1958), because it finally and 
definitively denies all the relief sought in federal court by 
the removing parties and sends them to trial in a forum 
which they claim has been ousted of jurisdiction to try their 
cases. United States v. Wood, 295 F. 2d 772 (5th Cir. 
1961); cf. Local No. 438 v. Curry, 371 TJ. S. 542 (1963) 
(construing 28 IT. S. C. § 1257 (1958)); Mercantile National 
Bank v. Langdeau, 371 U. 8. 555 (1963) (same) ; and see
Tuttle and their significance are described in defendants’ Points and Authorities, 
hied as Appendix B to the petitions for removal herein, App. 16a-17a; and 
the Brief m Opposition, attached as Appendix D to the removal petitions (and, 
with the petitions, served on the appellees herein), is part of the record on this 
appeal. In view of the plain applicability of the 1964 act to these cases, and 
m deference to the policy of this Court’s Rule 24(7) limiting the length of 
briefs in the Court, defendants will not undertake to reproduce in this brief 
the arguments made successfully in the GeoYgia, v. Tuttle Brief in Opposition. 
If the Court should have any question as to the pre-July 2, 1964 law, however, 
defendants adopt the position in the Georgia v. Tuttle Brief and respectfully 
refer the Court to pp. 9-28, 32-46 thereof, and to the Supreme Court’s dis­
position of the case. It is true that the Court of Appeals for the Fourth 
Circuit, in Baines v. Danville and consolidated cases, 4th Cir., Nos. 9080-9084 
9149, 9150, 9212, decided August 10, 1964, held that remand orders in criminal 
civil rights cases removed, remanded and appealed prior to enactment of the 
1964 Civil Rights A ct could not be reviewed by appeal or mandamus. But 
inspection of the briefs in those cases will disclose that (a ) the principal argu­
ment made in the Georgia, v. Tuttle Brief in Opposition, pp. 34-40, was not 
advanced in the Fourth Circuit, and (b ) , in connection with the argument which 
was made to the Fourth Circuit, that Court’s attention was not called to the 
critical saving clause of §297 of the Judicial Code of 1911, set forth in the 
Georgia v. Tuttle Brief in Opposition, p. 25.



Harris v. Gibson, 322 F. 2d 780 (5th Cir. 1963) (alternative 
ground).

In any event, if the remand orders are not appealable, 
they are clearly reviewable by a proceeding in the nature 
of mandamus.45 The Supreme Court so ruled in Wiswall, 
supra; that ruling has never been questioned in subsequent 
cases; 46 and, indeed, the Court has said that but for the 
now repealed bar of former § 1447(d) (1958), “ the power 
of the court to issue the mandamus would be undoubted.”  
In re Pennsylvania Co., 137 U. S. 451, 453 (1890) (dictum). 
Defendants herein have not formally filed a petition in this 
Court for a writ of mandamus to review Chief Judge 
Clary’s remand orders for several reasons. First, to make a 
District Judge unnecessarily a party to litigation, require 
him to secure representation by counsel and file a return to 
a rule to show cause, is hardly consistent with appropriate 
respect for the person and convenience of the federal 
judiciary. Second, to petition this Court for a mandamus 
running against Chief Judge Clary would be particularly 
disrespectful and inconsiderate, in light of Judge Clary’s 
kind efforts to facilitate these appeals by his order of July 
7, 1964, pp. 4-5, supra. Counsel for defendants is there­
fore unwilling to ask for a prerogative writ, unless it is 
absolutely necessary to preserve defendants’ interests. 
Accordingly, counsel has thought it advisable to follow the 
course approved in United States v. Igoe, 331 F. 2d 766 (7th

Argument 45

45. Fed. Rule Civ. Pro. 81(b ) formally abolishes the writ of mandamus 
but provides that all relief previously available by mandamus may be obtained 
by appropriate action or motion. Since this Court has jurisdiction to review 
final judgments of the District Court in the removal actions, 28 U. S. C. §. 1291 
(1958), it has jurisdiction under 28 U. S. C. §1651 (1958) to review inter­
locutory orders in the cases by mandamus. B.g., United States v. Smith, 331 
U. S. 469 (1947) ; La Buy v. H owes Leather Co., 352 U. S. 249 (1957) ; 
Platt v. Minnesota Mining & Mfg. Co., 376 U. S. 240 (1964) (by implication). 
This is so particularly where the interlocutory order is o f a sort which pre­
vents the cases from coming to final judgment in the District Court and thus 
defeats the normal appellate jurisdiction of this Court. McClellan v. Carland, 
217 U. S. 268 (1910) ; cf. E x  parte United States, 287 U. S. 241 (1932).

46. See ILoadley v. San Francisco, 94 U. S. 4, 5 (1876) ; Babbitt v. Clark, 
103 U. S. 606, 610 (1880) ; Turner v. Farmers’ Loan & Trust Co., 106 U. S. 
552, 555 (1882) ; Gay v. Ruff, 292 U. S. 25, 28 n. 3 (1934) ; Employers R e­
insurance Corp. v. Bryant, 299 U. S. 374, 378 (1937) ; also Missouri Pacific 
Ry. Co. v. Fitzgerald, 160 U. S. 556, 580 (1896); United States v. Rice, 327 
U. S. 742, 749-750 (1946).



46 Conclusion

Cir. 1964), to the following effect: If this Court should hold 
that the remand orders sought to be reviewed are not 
appealable hut are reviewable by mandamus, defendants 
respectfully request the Court to treat this brief as a 
petition for the writ. Counsel will thereupon pay the 
docketing fee for the petition, cause the appropriate por­
tion of this brief to be verified, and, with leave of the Court, 
so amend the brief as to seek review of all twenty-four 
cases remanded by the District Court.

CONCLUSION.

Defendants respectfully submit that the order of the 
District Court should be reversed, with directions to retain 
jurisdiction in these cases.

A n th o n y  G. A msterdam ,
3400 Chestnut Street, 
Philadelphia, Pa. 19104, 

Caleb F oote,
3400 Chestnut Street, 
Philadelphia, Pa. 19104, 

Counsel for Appellants.



A P P E L L A N T S ’ A P P E N D I X .

DOCKET ENTRIES.

(Identical in Criminal Nos. 21764 and 21765.)

1 June 26, 1964. Petition for removal from the Court of
Common Pleas of Delaware County, Pa., tiled.

2 June 29,1964. Plaintiffs motion and Notice of motion
to remand, filed.

June 30,1964. Hearing sur motion to remand. C.A.Y. 
TJC

3 July 6, 1964. Plaintiff’s answer to petition for re­
moval, and Motion to dismiss, tiled.

4 July 6, 1964. Order of Court Granting  motion to re­
mand, and this case is hereby R e m a n d e d , and 
D enying  defendant’s request that order of re­
mand be stayed, filed. 7-7-64 entered and copies 
mailed. TJC

5 July 7, 1964. Amended Order of Court V acating and
D eleting  p ortion  o f  order o f  rem and o f  7-6-64, 
and S taying  said  ord er pend ing appeal, tiled. 
7-7-64 entered and cop ies m ailed. [TJC]

6 July 7, 1964. Notice of appeal by defendants, tiled.
Copy to D.A. of Del. Co. and Clerk, U.S. Court 
of Appeals on 7-7-64.

7 July 7, 1964. Copy of Clerk’s statement of docket
entries to U.S. Court of Appeals, tiled.

8 July 9, 1964. Transcript of hearing of 6-30-64, tiled.
(# 2 1 7 6 4 )

(la)



PETITION FOR REMOVAL,
(Identical in Criminal Nos. 21764 and 21765.) 

Filed June 26, 1964.

2a Petition for Removal

[ A p p e n d i c e s  C, D a n d  E o m i t t e d . ]

[Removal petitions are being herewith filed in between 
500 and 550 criminal cases arising out of the Chester, Penn­
sylvania, civil rights demonstrations of March and April 
1964. There are about 240 defendants, most involved in 
only one demonstration episode, some involved in more than 
one. For each episode, each defendant involved in that epi­
sode is removing (a) one set of prosecutions on several bills 
of indictment pending in the Court of Quarter Sessions of 
Delaware County, Pennsylvania; and (b) one prosecution 
pending in the Court of Common Pleas of Delaware County 
on appeal for trial de novo from magistrate’s convictions 
for violations of two Chester City ordinances.

There are twelve demonstration episodes:
Removal
Petition Transcript

Nos. No. Place Date
1, 2 230 School District Ad­ Feb. 20

ministration
Building.

3, 4 215 Feb. 12
5, 6 333 9th and Kerlin St. Apr. 8
7, 8 292, 319, 4th and Market St. Mar. 28

334, 335 5th and Market St.
9, 10 293, 218, 

336, 337
7th and Edgemont St. Mar. 28

11, 12 286, 289 3rd and Pennell St. Apr. 24
290, 327, 360



Petition for Removal 3a

13, 14 295 6th and Edgmont St. Mar. 28
15, 16 282 4th and Edgemont St. 

4th, 5th and Market St.
Apr. 23

17, 18 283 School District Ad­
ministration Bldg.

Apr. 22

19, 20 284, 285 McClure’s Apr. 22
21, 22 291, 294 Police Station Apr. 1
23, 24 287 Dewey Mann School Apr. 22

Two removal petitions are filed for each, episode, even 
number removal petitions covering the indictable offenses, 
odd numbers covering the summaries. The caption page 
and pages 1 and 4 differ for each of the twelve episodes 
(i.e., the caption page and pages 1 and 4 of Removal Peti­
tions Nos. 1 and 2 are the same, but different from those 
respective pages of Removal Petition Nos. 3 and 4, 5 and 
6, etc.). All other pages are the same on all petitions.

Page 1 describes the facts of each, episode. Page 4 
describes the indictments arising out of each episode. Pages 
2 and 3 of each petition, describing the proceedings before 
the magistrate and the filing and allowance of the summary 
appeals, are not particularized for each episode. Page 2 
states: “ On one of the following dates [listing 6 dates]
. . . petitioner appeared [before the magistrate] . . 
etc. This reference procedure employed because the docu­
ments and information now available to counsel preparing 
these petitions does not allow counsel to state with assur­
ance which demonstration episodes are involved in which 
summary appeals. All of the removal papers in these cases 
have been prepared by one of petitioners’ counsel, Profes­
sor Anthony Gt. Amsterdam, who, with the assistance of a 
few law students, has worked for 72 hours without inter­
ruption in their preparation, after spending virtually all 
of the last six weeks in various civil rights litigation of 
equal urgency with these cases. Since it is essential, that



4a Petition for Removal

these petitions be filed before the state trials begin, as re­
quired by 28 U. S. 0. § 1446(c) (1958), Mr. Amsterdam will 
not have time to go through the papers as respects each of 
the 240 petitioners for the purpose of working out the rela­
tionship between the summary appeal numbers and the 
demonstration episodes.]

I .

On February 20, 1964, at about 1 :30 P. M., Petitioners 
were arrested by policemen of the City of Chester, Dela­
ware County, Pennsylvania, at the Chester School Admin­
istration Building. A  group of spokesmen for equal civil 
rights arrived at the Administration Building in order to 
discuss with authorities the problem of racial segregation 
and inequality that exists in the Chester school system. 
The group was invited to enter and remain in a room by an 
employee. The group remained there for a time and was 
told to leave. Not having accomplished any part of the 
purpose for which they came, the group refused to go. The 
police were called and petitioners were arrested.

(2) On one of the following dates: March 28, April 2, 
April 9, April 23, April 24, April 27, 1964, petitioners ap­
peared before Magistrate Philip Puzzanchera of the City of 
Chester, Delaware County, Pennsylvania, and were con­
victed summarily by the magistrate of violations o f :

(a) Code of Ordinances of the City of Chester, Penn­
sylvania (1956), § 16-13 (noncompliance with a police 
order), and

(b) Ordinance No. 61 of 1962 of the City of Chester, 
Pennsylvania (disorderly conduct) [appended as Appendix 
A  to this petition].

Each petitioner was sentenced to the maximum penalty 
on each charge: $50 fine and $9 costs on the noncompliance 
charge and $300 fine and $9 costs on the disorderly charge, 
a total of $350 plus $18 costs, or 40 days imprisonment.



Petition for Removal

Each petitioner petitioned the Court of Common Pleas 
of Delaware County, Pennsylvania, to allow an appeal for 
trial de novo in that court of his summary convictions de­
scribed above. In each petitioner ’s case, the Court of Com­
mon Pleas allowed the appeal on one of the following dates, 
and fixed bail pending appeal in the amount indicated fol­
lowing each respective date:

5a

Magistrate’s Appeal
hearing allowed Bail

3/28 3/31 recognizance
4/2 4/6 $300
3/28 4/6 $1000
4/2 4/8 $1000
4/2 4/10 $1000
4/9 4/11 $718
4/23, 4/24, 4/27 5/12 $1000

Most of the petitioners made the bond set, in most instances 
with the financial assistance of other persons, not involved 
in these demonstrations or prosecutions, but sympathetic 
to the cause of equal civil rights. Funds from these sources 
having been exhausted, twenty-three indigent defendants, 
petitioners in this or companion cases, were unconstitu­
tionally detained in a police garage for two and one-half 
weeks, with several other demonstration arrestees. In a 
proceeding on writ of habeas corpus in the Court of Com­
mon Pleas of Delaware County, these petitioners were 
denied outright release, and their contentions invoking the 
First, Eighth and Fourteenth Amendments rejected, but 
their bail was, in most cases, reduced to $300, and, with as­
sistance of other persons, they were able to make bond.

On the same date on which each petitioner was con­
victed by the magistrate of the summary offenses described 
above, he was bound over to the grand jury on several in­
dictable offenses. *

* In some of these cases, it appears that bail was set in amounts up to 
$1000 on the indictable charges.



6a Petition for Removal

(3) Petitioners were indicted by the Grand Jury of 
Delaware County, in indictments numbered 507 through 
510, on June 4, 1964, on the following charges:

(4) The acts for which petitioners are being held to 
answer for offenses, as described in paragraphs 1 to 3 
above, are, insofar as the offenses charged have any basis 
in fact, acts in the exercise of petitioners’ rights of freedom 
of speech, assembly and petition, guaranteed by U. S. 
Const., Amends. I, XIV, and 42 IT. S. C. § 1983 (1958), to 
protest either (1) unlawful racial discrimination against 
Negroes in the schools of the City of Chester, violating the 
rights of petitioners and others similarly situated under 
the Equal Protection Clause of the Fourteenth Amendment 
and 42 U. 8. C. § 1981 (1958), or (2) mass illegal arrest of, 
and unjustifiable brutality practiced upon, other persons 
engaged in peaceful protest and demonstration, pursuant 
to a policy of the Chester City Police, acting with the Penn­
sylvania State Police, to enforce the City of Chester’s 
policy of racial discrimination and suppression of all pro­
test, in violation of TJ. S. Const., Amends. I, IV  and XIV. 
Insofar as the offenses charged against petitioners are 
based on allegations of conduct not protected by the federal 
Constitution and laws cited, these allegations are ground­
less in fact.

(5) The arrests and prosecutions of petitioners have 
been and are being carried on with the sole purpose and 
effect of harassing petitioners and of punishing them for, 
and deterring them from, exercising their constitutionally 
protected rights of free expression to protest unconstitu­

1) Forcible Detainer
2) Unlawful Entry
3) Conspiracy
4) Common-Law Conspiracy

(18 P. S. 4404) 
(18 P. S. 4901.1) 
(18 P. S. 4302) 
(111 Super. 494)

II.



Petition for Removal 7a

tional discrimination. This harassment of petitioners is 
pursuant to a policy of racial discrimination against 
Negroes and of repression of Negroes’ free speech by the 
elected and appointed officials of the City of Chester and 
Delaware Comity. Harassment is evident in the prosecu­
tion of the petitioners on a vexatious multiplicity statutory 
and commonlaw offenses—some unconstitutional on their 
face for vagueness (public nuisance, commonlaw nuisance, 
commonlaw conspiracy), others for which there could be no 
constitutionally sufficient evidence (conspiracy to do an un­
lawful act)—cumulative upon petitioners’ conviction of two 
distinct ordinance charges and imposition of the maximum 
penalties on each.

III.
(6) By reason of the foregoing, petitioners are being 

prosecuted for acts done under color of authority derived 
from the federal Constitution and laws providing for equal 
rights, that is, U. S. Const., Amends. I, X IV  and 42 U. S. C. 
§§1981, 1983 (1958), and for refusing to do acts on the 
ground that they would be inconsistent with the Constitu­
tion and laws cited. Also, by reason of the allegations of 
paragraphs 1 to 5 above and more particularly of para­
graph 7 below, petitioners have been denied, are being 
denied, and cannot enforce in the courts of the Common­
wealth of Pennsylvania rights under the cited federal con­
stitutional and statutory sections providing for the equal 
rights of citizens of the United States and of all persons 
within the jurisdiction of the United States.

(7) Petitioners are unable to enforce their federal 
rights described above in the courts of Pennsylvania, and 
particularly in the Courts of Common Pleas and Quarter 
Sessions of the Peace of Delaware County because those 
courts are hostile to petitioners. Specifically:

(a) Throughout the state proceedings to date, most of 
the petitioners have been held on excessive and exorbitant



8a Petition for Removal

bail, in violation of the Eighth Amendment as applied by 
the Fourteenth. The first groups of petitioners to perfect 
their summary appeals, 3/31/64 were released on their own 
recognizance. As the demonstrations continued, the bail 
increased: $300 and $1000 for groups of petitioners in mid- 
April, and $1000 for petitioners who perfected their appeals 
in May.

(b) Newspaper and radio publicity in Delaware 
County growing out of the demonstrations on which the 
charges against petitioners are based has created an atmos­
phere of prejudice against petitioners in the county which 
makes it impossible to secure a fair and impartial Delaware 
County jury. This is not merely the sort of hostility 
aroused by adverse newspaper comment even in an 
atrocious murder or rape case. The unprovoked and law­
less violence and brutality of the Chester and Pennsylvania 
State Police in arresting the petitioners has created in the 
news media and the public mind a personal terror that 
defendants’ demonstrations endanger the peace of Dela­
ware County and the physical security of all its inhabitants. 
Through no fault of petitioners and solely by reason of the 
lawlessness of the police, the specter of violent race riots on 
a large scale, potentially menacing every person in the 
locality has been bred in the public mind. Mingled fear 
and hatred affect the potential jurors; race consciousness 
and hostility have so permeated and infected the public life 
of the community as to render it impossible to obtain for 
these petitioners, charged with demonstration activity in 
assertion of Negroes’ rights, the fair trial required by the 
Fourteenth Amendment.

On June 25, 1964, Lt. Governor Raymond P. Schafer 
of the Commonwealth of Pennsylvania made a widely pub­
licized statement that “ there was no justification for fur­
ther action on charges of brutality”  by Pennsylvania State 
Police “ as distinguished from the use of reasonable force 
in maintaining law and order” . If this statement means



Petition for Removal 9a

that Pennsylvania State Police did not commit acts of en­
tirely unjustified brutality in the Chester demonstrations, 
the statement is false. The statement endorses as the policy 
of the Commonwealth the lawless, racially discriminatory 
and repressive violence of the Chester and State Police, and 
by asserting that force was necessary to cope with the 
demonstrations, increases the warrantless public hostility 
to, and fear of, petitioners.

(c) The judges of the Courts of Common Pleas and 
Quarter Sessions are elected judges, and are politically 
responsible to the same racially hostile and racially fearful 
constituency described in the preceding paragraph. They 
are required to preside at the trials and on all preliminary 
motions in these cases, including motions for change of 
venue, and continuance, and on voir dire proceedings.

(d) Under Purdon’s Pa. Stat. Ann., tit. 19, §551, no 
motion for change of venue is available in misdemeanor 
cases on the ground set forth in para. (7) (b) supra. A  
motion for change of venue is available on grounds of jury 
prejudice only after “ an unsuccessful effort has been made 
to procure and impanel a jury. . . . ”  § 551, Third. Yet 
Pennsylvania voir dire practice is so restrictive that no 
adequate inquiry can be made on voir dire to find the race 
prejudice of the prospective jurors described in para. 
(7) (a) supra. And the “ effort . . .  to procure and im­
panel a jury”  must be made in the courts of Delaware 
County. As applied in these cases, § 551 violates the Four­
teenth Amendment and denies petitioners, makes them un­
able to enforce, their rights under the federal Constitution 
and laws providing for equal civil rights.

(e) These cases involve about 240 defendants, most 
of them indigent. They are charged in 93 indictments, 
arising out of more than a dozen demonstration incidents. 
Each demonstration incident is a complex affair, some 
involving hundreds of persons: demonstrators, police, by­
standers. Ten statutory and common-law offenses are



10a Petition for Removal

charged. Grave constitutional issues under the federal and 
state constitutions are implicated.

Petitioners were indicted June 4 and June 5. On that 
date most of them for the first time retained Edward Law­
horne, Esq. and Jack Brian, Esq., of the Delaware County 
bar to represent them in the indictable cases. Mr. Lawhorne 
and Mr. Brian had already been at work on the case during 
about six weeks but without knowing (save for a few of 
the petitioners) which, if any of the petitioners they would 
represent. An inordinate amount of Mr. Lawhorne’s and 
Mr. Brian’s time during this period had been spent on 
other proceedings arising out of the State’s multifaceted 
prosecutions of the petitioners: magistrate’s hearings, ap­
peals from summary convictions (involving the preparing 
of documents in hundred-fold), arguments on motion to 
quash appeals; civil declaratory judgment proceedings in 
state and federal courts brought by the Chester School 
Board for a declaration of the constitutionality of segre­
gated schools; a state injunction proceeding by the school 
board; a State Human Relations Commission hearing on 
the Chester schools, precipitated by petitioners’ protests 
and demonstrations; habeas corpus petitions and hearings 
necessitated by the State’s unconstitutional detention of 
27 indigent defendants, including 23 petitioners, on exces­
sive bail for two and a. half weeks. With the aid of about 
a dozen volunteer law students from the University of 
Pennsylvania Law School, Mr. Lawthorne and Mr. Brian 
worked throughout late May and early June interviewing 
defendants. Not more than 200 have been interviewed to 
date, and it has been impossible to find time to locate and 
interview non-defendant witnesses. It has been impossible 
for Mr. Lawhorne and Mr. Brian to read through all of the 
interview statements so far taken, written out in longhand 
by a dozen different students, and to assimilate the infor­
mation and form any coherent and comprehensive idea of 
the events involved in these litigations. They have thus 
been unable, not only adequately to prepare for trial, but



Petition for Removal 11a

also adequately to prepare to make critical pretrial de­
cisions respecting severance.

The indictments returned June 4 and 5 (Thursday and 
Friday) were set for trial June 22. Mr. Lawhorne and 
Mr. Brian immediately moved on June 8 for a continuance, 
putting the foregoing facts before the court, noting that 
they had been unable to secure from the respective 
stenographers transcripts of the magistrates’ hearings or 
the habeas corpus hearings needed to prepare for trial, 
and claiming that the Sixth Amendment compelled that 
counsel be given time adequately to prepare petitioners’ 
defenses. This motion was denied the same day (although 
the order was not filed until June 15), the court setting the 
cases over one week for trial on June 29, when they are 
now scheduled to begin.

Certain conflicts of interest among groups of the 240 
petitioners became evident, and certain of the petitioners 
on June 16, 1964 asked Mr. Fred Weisgal of the Maryland 
Bar to represent them as lead trial counsel. These peti­
tioners were later joined by numerous others amounting to 
about 150 in all. Efforts made to contact many of the 
remaining petitioners failed, those petitioners being out 
of the State or otherwise unreachable. On June 23, 1964, 
Mr. Weisgal appeared before the Court of Quarter Ses­
sions, accompanied by Mr. Lawhorne, Mr. Brian, and Mrs. 
Harriette Batipps (a member of the Delaware County Bar 
through whom Mr. Weisgal was prepared to enter his 
appearance), and, attempting to speak for a then inexactly 
ascertained number of petitioners, repeated the request 
for a continuance. He stated to the court that by reason 
of prior commitments to his family he could not be avail­
able to try the cases in July, and repeated that in any event 
he could not possibly adequately prepare the cases before 
the presently scheduled trial date. He explained that some 
of the petitioners had great personal faith in Mr. Weisgal 
and wanted him to try their cases. The court refused a 
continuance, refused to permit Mr. Lawthorne and Mr.



12a Petition for Removal

Brian to withdraw their appearance for some of the peti­
tioners whose interests conflicted with other petitioners, 
and ordered the cases to trial on June 29.

Mr. Weisgal cannot now possibly appear on June 29, 
nor could he adequately prepare for trial on June 29, nor 
can any of these cases be adequately prepared by defense 
counsel by June 29. Trial in the state courts under these 
circumstances will jeopardize effective enforcement of 
petitioners’ substantial underlying First and Fourteenth 
Amendment rights, and will deprive them of the effective 
assistance of counsel and of adequate time to prepare for 
trial in violation of the Sixth and Fourteenth Amendments,

(8) Petitioners anticipate that a motion to remand 
these cases will he filed by the prosecutor. In the event of 
a remand, petitioners will he unable to protect their federal 
constitutional rights in the state courts. Petitioners ap­
preciate that earlier civil rights removal cases have been 
remanded by this Court. However, petitioners hope to 
show the Court that (1) a supervening decision of the 
Supreme Court of the United States, Georgia v. Tuttle, 
32 U. S. L. Week 3446 (6/22/64), and supervening deci­
sions of the Courts of Appeals of the Fourth and Fifth 
Circuits, all concerning 28 U. S. C. § 1443(1) (1958), de­
mand reconsideration of those rulings; and (2) that, as 
respects 28 U. S. C. § 1443(2) (1958), petitioners’ case 
presents an issue that is res nova. A  brief appendix of 
points and authorities is attached to this removal petition, 
as is the Law Week’s printing of the Supreme Court’s 
Georgia v. Tuttle decision and a copy of the Brief of Re­
spondents therein.

Petitioners pray a hearing on any motion to remand 
which may be made. And in the event of a decision by 
this Court to remand the cases, petitioners pray a stay 
of the remand order pending expeditious appeal to the 
Court of Appeals for the Third Circuit.



Appendix A to Petition 13a

APPENDIX A.

Ordinance No. 61 op 1962 (D isorderly C onduct)

T h e  Council of t h e  C ity  op C hester D oes Ordain :

Section 1. Disorderly conduct is hereby prohibited within 
the City of Chester. Whoever shall wilfully make any loud, 
boisterous or unseemly noise or disturbance, or who shall 
fight or quarrel or incite others to fight or quarrel, or who 
shall publicly use obscene or indecent language, or who shall 
loaf or loiter or congregate upon any of the public streets 
or alleys or public grounds in the City of Chester to the 
danger, discomfort, or annoyance of peaceable residents 
near by or traveling upon any street or alley or being upon 
any of the public grounds in the City whereby the public 
peace is broken or disturbed or the traveling public an­
noyed, is guilty of the offense of disorderly conduct, and 
upon conviction thereof in a summary proceeding shall be 
sentenced to pay the costs of prosecution and to pay a fine 
of not less than Five Dollars ($5.00) nor more than Three 
Hundred Dollars ($300.00) and in default of the payment 
thereof shall be imprisoned for a period not exceeding 
thirty (30) days.

Section 2. I f  any clause, sentence, paragraph, or part of 
this Ordinance or the application thereof to any person or 
circumstances shall for any reason be adjudged by a court 
of competent jurisdiction to be invalid, such judgment shall 
not affect, impair or invalidate the remainder of this Ordi­
nance nor the application of such clause, sentence, para­
graph or part to other persons or circumstances but shall be 
confined in its operation to the clause, sentence, paragraph 
or part thereof and to the persons or circumstances directly



14a Appendix A to Petition

involved in the controversy in which such judgment shall 
have been rendered.

S ection 3. All Ordinances and parts o f  Ordinances in­
consistent herewith are hereby repealed.

W e H ereby Certify that this Ordinance passed Council this 
23rd day of October A.D., 1962.

J oseph L. E yre 
M ayor



Appendix B to Petition 15a

APPENDIX B.

P oints and A tjthobities

(Paragraph, numbers correspond to paragraphs 
of the Petition for Removal)

(4) (A) Petitioners’ First-Fourteenth Amendment claims 
are based upon Edwards v. South Carolina, 372 U. S. 
229 (1963); Fields v. South Carolina, 375 U. S. 44
(1963) (per curiam) ; Henry v. Rock Hill, 84 S. Ct. 1042
(1964) . Application of any of the vague Pennsylvania 
statutes or common-law criminal doctrines with which peti­
tioners are charged to petitioners’ exercise of their rights 
or free expression would fall afoul of Thornhill v. Alabama, 
310 IT. S. 88 (1940), and N. A. A. C. P. v. Button, 371 IJ. S. 
415 (1963).

(B) Petitioners’ right to exercise these First-Four­
teenth Amendment freedoms is protected by Rev. Stat. 
§ 1979, 42 IT. S. C. § 1983. Egan v. Aurora, 365 U. S. 514 
(1961); Douglas v. Jeannette, 319 IT. S. 157, 161-162 (1943) 
(relief denied on another ground). Rev. Stat. § 1979, which 
originated as § 1 of the third Civil Rights (Ku Klux) Act 
of April 20, 1871, 17 Stat. 13, is a law providing for equal 
civil rights within the meaning of 28 IT. S. C. § 1443 (1) and
(2) (1958). See the predecessor of § 1443: Rev. Stat. § 641.

(C) Petitioners’ immunity against harassment de­
signed to cripple their protests against unconstitutional 
racial segregation is supported by Peterson v. Greenville, 
373 IT. S. 244 (1963); Lombard v. Louisiana, 373 IT. S. 267 
(1963); Robinson v. Florida, 32 U. S. L. Week 4716 
(6/22/64).

(D) This immunity is protected by Rev. Stat. § 1977, 
28 IT. S. C. § 1981 (1958), which, originating as § 1 of the 
First Civil Rights Act of April 9, 1866, 14 Stat. 27, is also



a law providing for equal civil rights within both subsec­
tions of § 1443.

(5) (A) Petitioners’ assertion that the Pennsylvania 
public nuisance statute and common-law nuisance and con­
spiracy statutes are void for vagueness rests on the doctrine 
of Bouie v. Columbia, 32 II. S. L. Week 4701 (6/22/64), and 
particularly Musser v. Utah, 333 U. S. 95 (1948) (decision 
withheld), on remand, State v. Musser, 118 Ut. 537 223 
P. 2d 193 (1950).

(B) Petitioners’ assertion that Purdon’s Pa. Stat. 
Ann., tit. 18, § 4302 (conspiracy to do an unlawful act) is 
not even colorably applicable to these cases is justified on 
the face of the statute, which reaches only conspiracies to 
prejudice other individuals.

(6) Petitioners predicate their right to removal on both 
subsections of 28 U. 8. C. § 1443 (1958):

S ubsection ( 1 ) : Georgia v. Tuttle, 32 IT. 8 . L. Week 
3446 (6/22/64), was decided last Monday. It involved an 
attempted removal under § 1443(1) of a number of criminal 
trespass prosecutions in demonstration cases in Atlanta, 
Georgia. The circumstances and legal theory of the re­
moval were quite similar to those in the present case, with 
the differences that: (1) petitioners’ claim to First Amend­
ment protection in the activities for which they are charged 
is stronger than that of the Atlanta demonstrators; (2) 
petitioners’ allegations of fact respecting the reasons why 
they cannot enforce their federal rights in the state court 
are considerably more substantial than those of the Atlanta 
demonstrators (whose removal petition is rather conclu- 
sory, see App. 3, Respondents’ Brief in Georgia v. Tuttle). 
The federal district court remanded the cases, and a panel 
of the Court of Appeals for the Fifth Circuit stayed the 
remand order pending appeal. Rachel v. Georgia, 5th Cir., 
No. 21,354 (unreported order, 3/12/64), at App. 22 in 
Respondents’ Brief in Georgia v. Tuttle. The State of

16a Appendix B to Petition



Appendix B to Petition 17a

Georgia sought writs of prohibition and mandamus from 
the Supreme Court to vacate the stays. The Court denied 
relief on the papers. In light of the Court’s traditional 
willingness to issue the extraordinary writs at the instance 
of a State, to review lower federal courts’ improper as­
sumptions of jurisdiction in criminal removal cases, Vir­
ginia v. Rives, 100 U. S. 313 (1879); Kentucky v. Powers, 
201 U. S. 1 (1906); Maryland v. Soper, 270 U. S. 9 (1926); 
Colorado v. Symes, 286 TJ. S. 510 (1932), the summary dis­
position in Rachel indicates that the Court had no difficulty 
in concluding that the argument for removal was tenable. 
Petitioners herein adopt the argument made to the Court in 
Georgia v. Tuttle, Brief pp. 51-58, with the additional note 
that Baggett v. Bullitt, 84 S. Ct. 1316 (1964), decided on the 
day the Georgia v. Tuttle brief was filed, further supports 
the argument at p. 53 therein, that in First Amendment 
cases there is a particular justification for federal judicial 
anticipatory action supplanting that of the state courts. 
Petitioners further note that the Fourth Circuit in Baines 
v. Danville, 321 F. 2d 643 (4th Cir. 1964), as well as the 
Fifth Circuit in Rachel v. Georgia and other cases, has 
stayed remand orders in §1443(1) civil rights removal 
cases; and that the district courts in the Fifth Circuit are 
now holding removal cases under continued motions to 
remand, or stayed remand orders, pending further appel­
late development. E.g., Judge Sloan’s order in the Atlanta 
eases, State v. Bentham, Respondents ’ Brief in Georgia v. 
Tuttle, App. 36.

S ubsection (2 ): On its face, the authorization of re­
moval by a defendant prosecuted for ‘ ‘ any act done under 
color of authority derived from any law providing for equal 
rights”  might mean to reach (a) only federal officers en­
forcing the Civil Rights Acts, (b) federal officers enforcing 
the Civil Rights Acts and also private persons authorized 
by the officers to assist them in its enforcement, or (c) all 
persons exercising rights granted by the Civil Rights Acts. 
Alternative (a) is untenable: the “ color of authority”  pro­



18a Appendix B to Petition

vision which is now § 1443(2) in its original form explicitly 
reached “ any officer, civil or military, or other person”  
(Act of April 9, 1866, § 3, 14 Stat. 27), and it continued in 
this form in Rev. Stat. § 641 and the Judicial Code of 1911, 
§ 31, 36 Stat. 1087, 1096, until put into present form in the 
1948 revision, which the Revisor ’s Note to 28 U. S. C. § 1443 
(1958) says was merely changed “ in phraseology.”  Alter­
native (b) is also unacceptable, inter alia, because it ignores 
that when Congress wanted to limit “ color of authority”  
in removal statutes to persons assisting federal officers, it 
has several times inserted such a specific limitation; indeed, 
the same Congress, Thirty-Ninth Congress, First Session, 
which enacted the 1866 Civil Rights Act removal provisions, 
now §1443(2), without such limitation, also enacted the 
Revenue Act of July 13, 1866, 14 Stat. 98, § 67, authorizing 
removal of suits or prosecutions “ against any officer of the 
United States appointed under or acting by authority of 
[the revenue laws] . . .  or against any person acting under 
or lay authority of any such officer on account of any act 
done under color of his office, or against any person holding 
property or estate by title derived from any such officer, 
concerning such property or estate, and affecting the va­
lidity of [the revenue laws], . . . ”  (Emphasis added.) 
Moreover, if the “ color of authority”  removal provisions 
of § 144-3(2) are limited to federal officers and persons work­
ing under them to enforce the civil rights laws, the section 
is entirely superfluous in the 1948 Code, since 28 U. S. C. 
§ 1442 (1958) already covers all federal officers and persons 
acting under them, allowing removal of suits or prosecu­
tions against them in the state courts, whether or not in 
civil rights cases. I f  § 1443(2) is to have any meaning— 
since private persons do not enforce a federal statute unless 
they are acting under a federal official—“ act done under 
color of authority derived from any law providing for 
equal rights”  must cover any act in the colorable exercise 
of federal civil rights. Petitioners’ acts were such See 
paras. (4) (A), (B), (C), (D), supra.



Appendix B to Petition 19a

(7) (A) Petitioners’ right to trial by an impartial tri­
bunal is protected by the Fourtenth Amendment. Rideau 
v. Louisiana, 373 U. S. 723 (1963); United States ex rel. 
Bloeth v. Denno, 313 F. 2d 364 (2d Cir. 1963), cert, denied 
372 U. S. 978 (1963), and authorities cited; also Tumey v. 
Ohio, 273 U. S. 510 (1927); In re Murchison, 349 U. 8. 133 
(1955).

(B) Concerning the limitation upon voir dire examina­
tion under Pennsylvania practice, the Supreme Court of 
Pennsylvania has said that questions concerning racial bias 
are irrelevant and may not be asked on voir dire. Com­
monwealth v. McGrew, 375 Pa. 518, 524, 100 A. 2d 467, 470 
(1953).

(C) Trial of petitioners without fair opportunity to 
have counsel of their choosing adequately prepare their 
case for trial violates their rights under the Sixth Amend­
ment, United States v. Johnson, 318 F. 2d 288 (6th Cir. 
1963) (Balk’s case), and cases cited, as applied by the 
Fourteenth, and under the Due Process Clause of the 
Fourteenth.

V e r i f i c a t i o n .

I, Anthony G. Amsterdam, of lawful age, first being 
duly sworn upon oath, depose and say:

That I am a member of the bar of the District Court 
and Court of Appeals of the District of Columbia;

That I am the duly authorized attorney for petitioners 
herein, authorized to prepare and verify the annexed 
petition ;

That I have read the annexed petition and know the 
contents thereof; and

That as to subject matter I believe it to be true; and



20a Appendix B to Petition

That I sign this verification on behalf of the peti­
tioners, because the annexed petition deals chiefly with mat­
ters of law and legal inference to be drawn from facts al­
leged and/or of which I as an attorney have more knowledge 
than the petitioners, and for the further reason that there 
are approximately 240 petitioners herein, many of whom 
cannot be shortly found, and time is of the essence.

A n t h o n y  G. A m s t e r d a m ,

Attorney for Petitioners.

Sworn to and subscribed to before me this 26th day of 
June, 1964.

Notary Public.



Motion to Remand 21a

MOTION FOR REMAND, FILED JUNE 29, 1964.

(Applies to Criminal Nos. 21764 and 21765.)

Now, this 26th day of June 1964, comes the Common- 
weath of Pennsylvania, by the District Attorney of Dela­
ware County, J acques H. Pox, and moves your Honorable 
Court for an Order to Remand the above causes to the 
Court of Quarter Sessions of the Peace and General Jail 
Delivery of Delaware County, Pennsylvania, (and the 
Court of Common Pleas of Pennsylvania as to Summary 
Appeals), from which Court the causes were attempted to 
be removed to this Court on the ground that the cases, were 
improperly removed and are not within the jurisdiction of 
your Honorable Court, and for reasons as more fully ap­
pear in the Answer to be filed to the Defendants’ Petition 
for Removal.

J acques H. Pox,
Jacques H. Pox,

District Attorney.



22a Answer to Petition

The Commonwealth of Pennsylvania, by Jacques H. 
Fox, District Attorney of Delaware County, Pennsylvania, 
respectfully represents:

In view of the rambling nature and irrelevant aver­
ments in the petitions filed in this matter, the Common­
wealth of Pennsylvania is unable to file an orderly Answer 
to said petitions. However, in order to expedite the mat­
ter, the Commonwealth herein files its Answer and Motion 
to Dismiss Said Petition; and in the cases where denials 
are made in the ensuing paragraphs herein, the Common­
wealth demands strict proof, if required by your Honor­
able Court, of all the allegations in the nature of facts 
averred by petitioners.

(1) This paragraph sets forth petitioner’s view of 
facts which gave rise to the Petition, and the Common­
wealth cannot agree that the facts as set forth by the Peti­
tioners are correct, and, accordingly, in lieu thereof, the 
Commonwealth relies on the facts set forth in the record 
of the State Court proceedings; which record is incor­
porated by reference thereto as fully as though herein set 
forth at length.

(2) This paragraph sets forth petitioner’s view of 
facts which gave rise to the Petition, and the Common­
wealth cannot agree that the facts as set forth by the peti­
tioners are correct, and, accordingly, in lieu thereof, the 
Commonwealth relies on the facts set forth in the record 
of the State Court proceedings; which record is incor­
porated by reference thereto as fully as though herein 
set forth at length.

(3) This paragraph sets forth petitioner’s view of 
facts which gave rise to the Petition, and the Common­

ANSWER TO PETITION FOR REMOVAL AND MOTION
TO DISMISS SAID PETITION, FILED JULY 6, 1964
(IDENTICAL IN CRIMINAL NOS. 21764 AND 21765).



Answer to Petition 23a

wealth cannot agree that the facts as set forth by the peti­
tioners are correct, and, accordingly, in lieu thereof, the 
Commonwealth relies on the facts set forth in the record 
of the State Court proceedings; which record is incor­
porated by reference thereto as fully as though herein set 
forth at length.

(4) This paragraph sets forth petitioner’s view of 
facts which gave rise to the Petition, and the Common­
wealth cannot agree that the facts as set forth by the Peti­
tioners are correct, and, accordingly, in lieu thereof, the 
Commonwealth relies on the facts set forth in the record 
of the State Court proceedings; which record is incor­
porated by reference thereto as fully as though herein set 
forth at length. In addition, the Commonwealth alleges 
that there is no problem of civil rights involved in the 
present State prosecution, and that if the petitioners wish 
to complain about certain actions of other Municipal bodies, 
or governmental authorities, they were permitted to do so ; 
and, moreover, if certain unconstitutional, illegal acts were 
being done by said authorities, petitioners have ample 
remedies available in both State and Federal Courts; which 
remedies petitioners have elected not to pursue.

(5) Denied. The Commonwealth vigorously denies the 
allegations contained therein, and, on the contrary, avers 
that the Petition fails to state any facts showing that the 
defendants are being harassed, punished or deterred in 
exercising their Constitutional rights. Moreover, the Peti­
tion does not indicate that the Commonwealth of Pennsyl­
vania, by the District Attorney, or by the Judges of the 
Courts of record, are in any way acting improperly or 
unfairly. On the contrary, it is further averred that the 
prosecution in all of these cases has been conducted in the 
usual manner in which all State prosecutions are conducted, 
which is: preliminary hearings before a Court not of rec­
ord, i.e.: an Alderman, presented to the Grand Jury, indict­
ment by the Grand Jury, if it finds a prima facie case, and



24a Answer to Petition

contemplated trials in the Courts of record, the Courts of 
Quarter Sessions of Delaware County, Pennsylvania. It is 
further averred that the criminal acts for which defendants 
are being prosecuted are crimes which have been part of the 
law of Pennsylvania for many years, and which crimes 
have been interpreted and re-interpreted by the various 
Courts in Pennsylvania, as well as Federal Courts. Simi­
larly as to the summary offenses, the cases are being tried 
in the usual manner, a hearing before the Alderman and on 
appeal before a Court of Eecord.

(6) Denied. The Commonwealth vigorously denies 
the allegation contained in this paragraph. The Petition 
fails to state any fact showing that the defendants are 
denied or cannot enforce in the Judicial tribunals of the 
Commonwealth of Pennsylvania, any rights secured to them 
by any law providing the equal civil rights of Citizens of 
the United States, or of any person within the jurisdiction 
of the United States, within the provisions and purview of 
Section 1443 of Title 28 of the U. S. Code. By way of 
further answer, the Commonwealth re-alleges the aver­
ments set forth in the preceding paragraph 5 herein. It 
is to be stressed and emphasized that the defendants are not 
being prosecuted in any way in violation of any of their 
civil rights, and, on the contrary, the petitioners are being 
prosecuted for the violation of certain statutes of the 
Commonwealth of Pennsylvania, which define criminal con­
duct; and that said statutes apply equally to all persons, 
regardless of race, religion, or color; and, as a matter of 
fact, petitioners in the instant case include persons of vari­
ous colors, races, and religion.

(7) Denied. The Commonwealth vigorously denies the 
allegations of paragraph 7, and, on the contrary, avers that 
the defendants have been prosecuted and are to be tried 
in the usual manner for all defendants charged with crime.

(a) Petitioners failed to differentiate between the pro­
ceedings before the Alderman, a Court not of record, and



Answer to Petition 25a

the proceedings before the Courts of Quarter Sessions, a 
Court of Record; and where the cases are to be tried. Peti­
tioners failed also to distinguish between bail and security 
for costs as to the summary offenses which were violations 
of City Ordinances, for which security is given and not bail. 
It is further averred that in Habeas Corpus proceedings 
before the Court of record, the bail was in all cases reduced.

(b) The allegations in this sub-paragraph are irrele­
vant and without basis in fact, and are merely a figment 
of the imagination of counsel. It is further averred that 
police brutality, if it existed, and it is not so admitted, may 
be redressed in the Federal Court through appropriate 
proceedings, but it is also averred that the question of 
so-called police brutality is irrelevant to the determination 
of the instant petition.

(c) The allegations of this sub-paragraph are so im­
pertinent, scandalous, inflammatory, conjectural, and ir­
relevant as to be not worthy of an answer, and are denied 
vigorously.

(d) The allegation of this sub-paragraph is denied as 
being irrelevant, conjectural, and anticipatory, and not in 
accordance with the facts.

(e) It is true that there is a large number of defend­
ants, but on the contrary, it is averred that from the very 
beginning they have had the benefit of legal assistance and 
counsel. Counsel of various identity and apparently sup­
plied by different groups have been in constant touch with 
the District Attorney’s office concerning all of these de­
fendants; and, on the contrary, the facts are not so 
complex as to cause any problem as to representation. 
Indeed, counsel for the various defendants suggested at one 
time to the District Attorney that they would be willing 
to try the so-called leaders in these cases, and that if the 
leaders were so tried, the majority of the other defendants 
should have the cases against them terminated in their



26a Answer to Petition

favor. The Commonwealth, through the District Attorney, 
agreed that it would try the leaders, if counsel for them 
could agree; hut the Commonwealth could not agree to do 
anything concerning the remaining defendants, except to 
await the final disposition of the cases against the so-called 
leaders, whether that final disposition he from a State or 
Federal Court, Even though counsel for the defendants 
had made this suggestion, they apparently could not 
secure agreement to do so, and, accordingly, it is of their 
Own choice that all of the defendants are being sought to 
be tried presently. Moreover, counsel for the defendants 
have recently filed motions to sever the various cases, so as 
to increase the number of trials, and thereby increase the 
work involved for counsel, despite the planned proposal 
of the Commonwealth to try certain defendants jointly, 
where they acted jointly.

The Commonwealth of Pennsylvania, by the District 
Attorney, has at all times cooperated with various counsel 
for the defendants, and after the indictments were returned 
by the Grand Jury, but before the setting of trial dates 
for the usual Term of Court, beginning June 16, 1964, 
before which time the various defendants were proposed 
to be tried, counsel for defendants sought a delay of one 
week in the beginning of the trial dates. The Common­
wealth agreed, and then when the motion for further con­
tinuance was made on June 8, 1964, the Commonwealth 
again agreed that postponement could be further made 
to June 29, 1964; and it was for that time that the present 
trials were scheduled.

The Commonwealth is not aware of any conflicts of 
interest involving the crimes charged which may arise 
among the various defendants, and it would appear that 
the only such conflict is between the various groups who 
have undertaken to become involved in these matters, i.e. 
certain conflicts arising from differing policy considera­
tions, and not from anything to do with the criminal 
prosecution or defendants themselves. The reference to



Answer to Petition 27a

Mr. Weisgal fails to indicate that he attempted to indicate 
off the record that his reason for continuance was his 
contemplated five-week vacation.

For all of the foregoing reasons, it is denied that trial 
as scheduled in the State Courts will jeopardize any of 
the defendants’ rights, except in the manner that a de­
fendant is always prejudiced by going to trial in any 
criminal case; and it is further denied that there will be 
any deprivation of the effective assistance of counsel. On 
the contrary, it appears that since these cases are being 
handled by the Commonwealth, orderly procedure requires 
trial in the State Courts, with the usual appellate remedies 
available.

(8) The allegations in this paragraph are impertinent 
and an affront to the Court, and discloses that the Petition 
for Removal is nothing else but a thinly veiled attempt to 
secure a postponement of the trial of these cases. Peti­
tioners are surely aware that the Act under which they 
seek removal flatly provides for no appeal.

Accordingly, for all of the foregoing reasons, the 
Commonwealth respectfully asks that petitioners’ Petition 
be dismissed, and for the additional reasons hereinafter 
set forth, the Commonwealth asks that all of the cases be 
remanded to the State Court:

(a) The right of removal of causes from the State 
Court to the Federal Court is purely statutory, existing in 
such cases, and only in such cases, as Congress has seen 
fit to provide for (Edwards v. E. I. DuPont Be Nemours 
<& Co., 183 F. 2d 165).

(b) In order to authorize a removal under Section 
1443 of Title 28, a violation of the equal protection clause 
of the 14th Amendment must be shown; some equal civil 
right must be denied, such as a discrimination against a 
particular race, and even the fact that rights guaranteed 
by the 14th Amendment are violated will not authorize the 
removal where the procedure adopted by the State au­



28a Answer to Petition

thorities is applied equally to all citizens of the United 
States (Hill v. Commonwealth of Pennsylvania, 183 F. 
Supp. 128, W. D. Pa).

(c) Where a denial claimed does not result from the 
Constitution or laws of the State, the statute does not 
apply to a denial or possibility or apprehension of a denial 
hy judicial action during the trial (Hull v. Jackson Cotmty, 
138 F. 2d 820).

(d) The allegations in the Petition that the crimes 
charged are vague, indefinite, and uncertain, and violate 
the due process clause of the 14th Amendment, does not 
of itself set a ground for removal to the Federal Courts 
of the prosecution before any determination of the guilt 
or innocence of the defendants was made in the State 
Courts, and before all available remedies within the State 
Courts have been used.

J acques H . F ox,
Jacques H. Fox,

jDistrict Attorney.



EXCERPTS FROM HEARING, JUNE 30, 1984.

(29) *

The Court: Do you want to go any further? Do you 
want to try to establish, although I don’t know how you 
could, your allegations of basic hostility of the courts and 
people of Delaware County!

Mr. Amsterdam: Your Honor, as I have said, the two 
major grounds on which we rely do not depend on those 
facts.

The Court: I rather gathered that from your
(30)
argument, Mr. Amsterdam, but I just wanted to know 
whether you wanted to go any further or whether I should 
take it on the complete constitutional and legal ground.

Mr. Amsterdam: I take it that in that posture, Your 
Honor, all of the allegations that have been denied by the 
Commonwealth would be taken as not proved on the record.

The Court: That is right.
Mr. Amsterdam: Because we have not offered testi­

mony as to it.
The Court: That is right.
Mr. Amsterdam: If Your Honor please, could a hear­

ing, an evidentiary hearing, he set on those issues? Is it 
the pleasure of the Court that that he done ?

The Court: I am ready to proceed right now.
Mr. Amsterdam: Bight now, Your Honor!
The Court: Yes.
Mr. Amsterdam: Well, we have no witnesses that we 

can present in court this morning, Your Honor, on an issue
* Figures in parentheses refer to page numbers of typewritten transcript 

of hearing.

Hearing (6/ 30/ 64) on Motion 29a



30a Hearing (6/30/64) on Motion

of this complexity. What we were talking about was prov­
ing the hostility of the community built up by publicity and 
chancred by the race violence in Chester. That is some­
thing for which we count on witnesses that we don’t have 
here now. When could we have such a hearing, Your 
Honor? We ought to have some adequate time to prepare 
for it.
(31)

The Court: I have said I am willing to proceed now.
Mr. Amsterdam: Well, Your Honor, I think that we 

cannot------

The Court: Put your thoughts on the record as to what 
that hearing would involve, a hearing of that nature.

Mr. Amsterdam: I would think that it would involve 
taking testimony from people who are familiar with the 
community, such as responsible representatives of the 
press, the television and radio network who are familiar 
with Delaware County and its environs as to the atmosphere 
and the attitude out there. I would think it would involve 
taking testimony of officials as to their attitude and the 
reason for these prosecutions. Your Honor, it might well 
be done on depositions, instead of in an open hearing.

The Court: Well, I wouldn’t permit the trial of a com­
munity in a situation like this.

I will take the matter under advisement and decide it.



Order of Remand 31a

A nd N ow , to wit, this 6th day of July, 1964, upon con­
sideration of plaintiffs’ Motion for Remand, hearing held 
and argument had thereon, and after a thorough examina­
tion and careful consideration of the well-pleaded factual 
(as opposed to psychological and conclusory) averments 
set forth in defendants’ petitions for removal, and the 
points raised and authorities cited therein, as well as the 
records of the Court of Quarter Sessions of the Peace and 
General Jail Delivery of Delaware County, and the Court 
of Common Pleas of Delaware County, submitted there­
with, which records consist of a record of appeals from 
summary convictions, copies of indictments returned 
against the several petitioners in the above-entitled actions, 
and copies of docket entries, various motions, as well as 
stenographic records of certain hearings, it clearly appears 
that these actions (previously pending in said Courts of 
Delaware County) were improperly removed to this Court 
pursuant to the provisions of Section 1443 of Title 28 
U .  S. C., it is now O r d e r e d , A d j u d g e d  a n d  D e c r e e d  that 
plaintiffs’ Motion for Remand he and it is hereby G r a n t e d , 

and the aforesaid cases be and they are hereby R e m a n d e d , 

respectively, to the Court of Quarter Sessions of the Peace 
and General Jail Delivery of Delaware County, Pennsyl­
vania, in those numbered cases where indictments were 
found, and to the Court of Common Pleas of Delaware 
County, Pennsylvania, as to the cases in which summary 
appeals were pending.

In light of the clear and unambiguous mandate of 
Congress set forth in Section 1447(d) of Title 28 U. S. C. 
that “ an order remanding a case to the State court from 
which it was removed is not reviewable on appeal or other­
wise” , the Court cannot grant the request of counsel for 
defendant-petitioners herein that compliance with the pro­

ORDER OF REMAND, FILED JULY 6, 1964 (APPLIES
TO CRIMINAL NOS. 21764-21787).



32a Order of Remand

visions of Section 1447(c), Title 28 IT. S. C. (that a certified 
copy of the order of remand shall be mailed by the Clerk of 
this Court to the Clerk of the State Court) be stayed, and, 
therefore, it must be and hereby is D enied .

No costs are allowed.

By THE COUBT:
/ s /  T homas J. Claby ,

Ch. J.



Amended Order 33a

A nd N ow , to wit, this 7th day of July, 1964, it having 
been brought to the attention of the Court that the Civil 
Rights Act of 1964, which was signed into law by the Presi­
dent of the United States on July 2, 1964, to be effective 
immediately (printed copies of which are not yet available), 
has amended Section 1447(d) of Title 28 of the United 
States Code by adding thereto the following words: “ ex­
cept that an order remanding a case to the State court from 
which it was removed pursuant to Section 1443 of this Title 
shall be reviewable by appeal or otherwise” , it is now 
Obdebed, A djudged and D ecbeed that Paragraph 2 of the 
Order of Remand entered July 6, 1964 in the above-entitled 
cases be and it is hereby V acated and D eleted, and in lieu 
and stead thereof, it is Obdebed that the Order of Remand, 
in Paragraph 1 of the Order of July 6, 1964, be and it is 
hereby S tated , pending appeal to the United States Court 
of Appeals for the Third Circuit, of actions #21764 and 
#21765, in which cases notices of appeal are being filed con­
currently with this Order. Since cases #21766-21787 inclu­
sive involve identical questions of law and fact as cases 
#21764 and #21765, these cases shall remain in this Court 
without remand, pending final determination of the appeals 
in #21764 and #21765, and until further order of this 
Court.

By THE COURT:
/ s /  T homas J. Claby ,

Ch. J.

AMENDED ORDER, FILED JULY 7, 1964 (APPLIES
TO CRIMINAL NOS. 21764-21787).



34a Notice of Appeal

The defendants named in the above-numbered removed 
criminal cases hereby appeal to the United States Court of 
Appeals for the Third Circuit from the order of this 
Court, Honorable Thomas J. Clary, Chief Judge, on July 6, 
1964, amended July 7, 1964, remanding these causes to the 
Courts of Quarter Sessions and of Common Pleas of Dela­
ware County, Pennsylvania.

Counsel for Defendants:
Caleb F oote,

3400 Chestnut Street, 
Philadelphia 4, Pa.,

A n t h o n y  G-. A mstebdam ,
3400 Chestnut Street, 
Philadelphia 4, Pa.,

Counsel for Defendants.

NOTICE OF APPEAL, FILED JULY 7, 1964 (IDEN­
TICAL IN CRIMINAL NO. 21764 AND 21765).

Dated 7/7/64



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